Tackett v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATION re 1 Complaint: It is RECOMMENDED that the Court REVERSE the Commissioner of Social Security's non-disability finding and REMAND this case to the Commissioner and the ALJ under Sentence Four of § 405(g). Objections to R&R due by 9/3/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 8/17/2015. (mas)

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

DINA JOANNE TACKETT,
Plaintiff,
Civil Action 2:14-cv-970
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Dina Joanne Tackett, brings this action under 42 U.S.C. § 405(g) for review of a
final decision of the Commissioner of Social Security (“Commissioner”) denying her application
for social security disability insurance benefits. This matter is before the United States
Magistrate Judge for a Report and Recommendation on Plaintiff’s Statement of Errors (ECF No.
7), the Commissioner’s Memorandum in Opposition (ECF No. 10), Plaintiff’s Reply (ECF No.
11), and the administrative record (ECF No. 6). For the reasons that follow, it is
RECOMMENDED that the Court REVERSE the Commissioner of Social Security’s
nondisability finding and REMAND this case to the Commissioner and the ALJ under Sentence
Four of § 405(g).
I.

BACKGROUND

Plaintiff filed her application for benefits in May 2011, alleging that she has been
disabled since October 29, 2001, due to a back injury and depression. (R. at 141-48, 178.)
Plaintiff’s application was denied initially and upon reconsideration.

Plaintiff sought a de novo hearing before an administrative law judge. Administrative
Law Judge Valerie A. Bawolek (“ALJ”) held a hearing on February 26, 2013, at which Plaintiff,
who was represented by counsel, testified. (R. at 30–37.) Medical Experts Judith Brendemuehl,
M.D., and Mary E. Buban, Psy.D., along with vocational expert Cecilia Thomas (“VE”), also
testified. On March 15, 2013, the ALJ issued a decision finding that Plaintiff was not disabled
within the meaning of the Social Security Act. (R. at 8–20.) On May 30, 2014, the Appeals
Council denied Plaintiff’s request for review and adopted the ALJ’s decision as the
Commissioner’s final decision. (R. at 1–5.) Plaintiff then timely commenced the instant action.
II.
A.

HEARING TESTIMONY 1

Plaintiff’s Testimony
Plaintiff testified that she is married and has five children, ages 15, 12, 9, 5, and 2. (R. at

30.) She testified that she last worked on October 29, 2001, her alleged onset date. (R. at 31.)
Plaintiff explained that she was injured while she was working as a laborer. She was under a
table re-upholstering it and began experiencing back pain. (Id.) Plaintiff went to the hospital
later that evening. (Id.) She alleges that she has had back pain since the injury occurred.
Plaintiff testified that after her injury, she experienced constant pain, muscle spasms,
sleep disturbance, and bilateral leg numbness and weakness. She also testified that she has fallen
many times. (R. at 32.) Plaintiff testified that she has been treated with epidural injections,
physical therapy, and a TENS unit, with no “success.” (Id.) Plaintiff stated that she needs
surgery, but her doctor told her to wait because she has young children. (R. at 33.) According to
1

In her Statement of Errors, Plaintiff does not challenge the Commissioner’s findings
with respect to her alleged mental impairments. Accordingly, the Court will focus its review of
the medical evidence on Plaintiff’s alleged exertional impairments.
2

Plaintiff, she took care of her children by herself prior to her injury. She explained that since her
injury, she receives help from her family. (R. at 33-34.) Plaintiff further explained that since her
injury, her husband, mother, friends from church, and neighbors assist her with housework. (R.
at 34.) She estimated that on a “good week,” she is able to do housework twice per week. (Id.)
She testified that she is unable to perform housework on a regular basis, however, due to her
back and leg pain. (Id.) She testified that she began using a cane in 2002. She stated that she
uses the cane to prevent falling. (R. at 34-35.) Plaintiff estimated that since her injury, she is
able to stand 15-20 minutes before experiencing shooting pain down her legs and feet; sit 10-15
minutes before her legs and feet go numb; walk a block; and lift 5 pounds. (R. at 35-36.)
B.

Medical Expert
Judith Brendemuehl, M.D., testified at the administrative hearing as to Plaintiff’s

physical limitations. (R. at 37-42.) Dr. Brendemuehl acknowledged that Plaintiff had no
impairments that met or equaled the listings for the period between October 29, 2001 and March
21, 2004. (R. at 37.) Dr. Brendemuehl testified that during that time, Plaintiff’s impairment was
a back injury. (Id.) Dr. Brendemuehl opined that, from sometime in 2002, the records supported
a sedentary to light level of activity. (R. at 38-40.) Dr. Brendemuehl opined that Plaintiff would
work “better at bench height,” where she would not have occasional bending, crouching, and
stooping, and would have “more limited truncal activity.” (R. at 40.) Dr. Brendemuehl also
opined that Plaintiff should only occasionally balance and climb stairs/ramps, and never climb
ladders or scaffolding. Dr. Brendemuehl further opined that Plaintiff should avoid concentrated
exposure to heat, cold, vibration, all heights, and hazardous machinery. (R. at 40.)

3

When examined by Plaintiff’s counsel, Dr. Brendemuehl testified that Plaintiff had a
physical basis for pain, but Plaintiff’s complaints were out of proportion to the objective
evidence in the record. Dr. Brendemuehl stated that the record supported a moderate level of
pain. She noted that multiple instances exist in the record where Plaintiff reported that her pain
was better for weeks at a time, but depending on her activity level, it would get worse or
exacerbate. Dr. Brendemuehl testified that the record supports a degree of pain, but perception
of pain is subjective and causes a variation. Finally, Dr. Brendemuehl acknowledged that
activity does increase back pain. (R. at 41.)
C.

Psychological Expert
Mary E. Buban, Psy.D., testified at the administrative hearing as to Plaintiff’s mental

limitations. (R. at 42- 45.) Dr. Buban testified that there were no mental impairments for the
period from October 2001 through March 2004. All of the records for mental health treatment
began after May 2005. (R. at 42.)
III.
A.

MEDICAL RECORDS

Bureau of Workers’ Compensation (“BWC”) file review
On January 20, 2002, Dr. Boyer reviewed Plaintiff’s file to address the motion filed for

inclusion of an additional condition of posterior paracentral disc protrusion at L5-S1. Dr. Boyer
concluded the file supports posterior paracentral disc protrusion at L5-S1. (R. at 314.)
B.

Gary Rea, M.D.
Plaintiff consulted with a surgeon, Dr. Rea, on March 11, 2002. On examination, Dr. Rea

found that Plaintiff had a full range of motion of her neck, shoulders, elbows and wrists. Dr. Rea
noted that Plaintiff had a positive straight-leg test. He further found that external rotation of the
4

hip bothers Plaintiff, mostly in her legs. He noted that she had tenderness in the greater
trochanteric region bilaterally. On examination, Plaintiff was able flex to almost 90 degrees, but
it caused her pain in her back. He noted that her gait and station were normal. Dr. Rea opined
that the disc protrusion at L5-S1 was possibly causing some of her symptoms, but her pain was
primarily in her back. He believed surgery at that point would not likely give her substantial
relief of her symptoms. (R. at 310-11.)
C.

A. Guido Hita, M.D.
On March 14, 2002, Dr. Hita performed an Independent Medical Examination (“IME”)

at the request of the BWC. (R. at 241-45.) Plaintiff reported that she suffered an industrial
injury on October 29, 2001, while under a table re-upholstering it. Dr. Hita noted that
emergency room notes, dated October 30, 2001, document that Plaintiff had back pain radiating
to the lower buttock and right lower extremity, and that she was treated with muscle relaxants.
(R. at 241-42.)
Dr. Hita further noted that a November 8, 2001MRI of Plaintiff’s lumbar spine revealed
“anomalies of segmentation, and a transitional vertebrae at the lumbosacral junction with
desiccation of the L5-S1 intervertebral disc with a small focal left paracentral posterior disc
protrusion at LS-S1 which did not result in significant spinal stenosis, but did produce minimal
narrowing of the left L5-S1 neural foramen.” (R. at 242.) Dr. Hita stated that “the radiologist
noted that it was conceivable that this could impinge upon the left S1 nerve root, but he makes
the observation that the patient complains of right sided radicular pain only.” Id.
Dr. Hita further stated that Plaintiff rated her pain on the best days at 3/10 and on the bad
days at 8/10, but she stated the pain was never absent. (R. at 242.) Plaintiff exhibited moderate
5

pain during the examination. Her back appeared to be supple with bilateral lumbar spasm and
tenderness. Reflexes were present in both knees and, although present in both ankles, they were
very slow. He found that the Patrick test was positive in the left sacroiliac joint and that
Plaintiff’s gait was frontally antalgic. (Id.) Dr. Hita opined that Plaintiff was not at Maximum
Medical Improvement (MMI) and that she needed epidural steroid injections. Dr. Hita
concluded that Plaintiff’s “afflictions are legitimate and consistent with radiculopathy produced
by the L5–S1 protruding disc.” (R. at 242-43.)
D.

Ronald G. Hawes, M.D.
Dr. Hawes performed an IME at the request of the BWC on July 25, 2002. (R. at 247-

51.) On examination, Plaintiff was comfortable, alert, and cooperative. She was initially
evaluated in the seated position where neurologic testing revealed a slightly diminished left knee
jerk and diminished ankle reflexes at both her right and left lower extremities. Dr. Hawes noted
that straight-leg raising was performed well in the seated position and that strength testing
revealed good muscle tone. Dr. Hawes noted that Plaintiff exhibited no obvious signs of muscle
atrophy. Plaintiff demonstrated weakness in the extensor hallucis longus muscle and tendon,
which adversely affected her great toe and forefoot of each lower extremity to an equal degree.
Dr. Hawes also noted some guarding and facial grimacing, which he stated represents pain
behavior. He observed that her range of motion was reduced in forward bending posterior
extension, as well as on the right and left lateral side during bending. He noted that palpation
revealed some tenderness in the left paraspinous region, extending into the left sacroiliac region.
Finally, her gait pattern and balance were noted to be normal. (R. at 248.) Dr. Hawes concluded

6

that Plaintiff had “reached a maximum level of medical improvement.” (R. at 249.) He opined
that Plaintiff is capable of light duty or sedentary work. (Id.)
E.

Careworks
In August 2002, Plaintiff complained of leg weakness. On a work release form, it was

noted that Plaintiff could not return to full duty; could not return to a temporary light duty
assignment; could not work an eight-hour day; and was able to work 0-2 hours per day and lift 010 pounds. The physician concluded that Plaintiff was unable to return to her prior employment.
(R. at 307.) By November 2002, Plaintiff complained of right arm weakness. (R. at 300.)
F.

Thomas N. Markham, M.D.
Dr. Markham performed an IME at the request of the BWC on August 14, 2003. (R. at

256-57.) Plaintiff exhibited tenderness over the left paraspinous area at L3-S1, a slow antalgic
gait, straight-leg raising positive on the left at 60 degrees with back pain, and weak dorsiflexion
of the left great toe. Dr. Markham recommended a 6 percent whole person impairment. (R. at
257.)
On September 8, 2003, Plaintiff’s primary care physician, Dr. Westmoreland, prepared a
letter to the BWC objecting to Dr. Markham’s August 14, 2003 findings, because Dr. Markham
did not note that Plaintiff was seven months pregnant during the examination. (R. at 259.)
G.

Bienvenido D. Ortega, M.D.
Dr. Ortega performed an IME at the request of the BWC on September 8, 2005. (R. at

322-24.) Examination of Plaintiff’s spine revealed no discoloration of the skin, scarring,
swelling, changes in lordosis, localized tenderness, muscle spasm or guarding. He noted that she
was somewhat careful walking, but she not really antalgic. He noted that Plaintiff had difficulty
7

squatting. He found that she exhibited positive Waddell signs, however. Dr. Ortega noted that
she had difficulty getting on and off of the examining table and putting on her boots, but she was
able to cross her legs while putting on her boots. He noted that her deep tendon reflexes were
2+ and equal throughout. (R. at 323.) Dr. Ortega concluded that because Plaintiff was in the
process of getting epidural steroid injections, she had not reached MMI. Dr. Ortega also noted
that she may not be qualified physically to be a laborer. He opined that Plaintiff should avoid
any employment requiring prolonged standing, sitting, and lifting. He concluded that she is
capable of light duty work up to a medium type of capacity. (R. at 324.)
H.

Pleasant Valley Hospital
Plaintiff presented to the emergency room on April 8, 2005, with complaints of injuring

her right foot while splitting logs at home. (R. at 349-53.)
I.

Doctor’s Hospital
An MRI taken of Plaintiff’s lumbar spine on March 9, 2005, showed the LS-S1 posterior

broad disk protrusion without significant thecal sac or S1 nerve root compressive effect. No
significant foraminal encroachments or existing nerve root compressive effects were noted. (R.
at 330-31.)
J.

State Agency Evaluation
On August 16, 2011, state agency physician, Lynne Torello, M.D., reviewed the record

and assessed Plaintiff’s physical functioning capacity for the relevant time period. (R. at 57-61.)
Dr. Torello opined that Plaintiff could lift and/or carry ten pounds occasionally and less than ten
pounds frequently; stand and/or walk about four hours in a workday; and sit for about four hours
in a workday. (R. at 59.) Dr. Torello opined that Plaintiff could never climb ladders, ropes, or
8

scaffolds; and could occasionally climb ramps/stairs, stoop, balance, kneel, crawl, or crouch. Dr.
Torello based Plaintiff’s postural limitations on her herniated lumbar disc, left lumbar
radiculopathy, lumbar spondylosis, myelopathy, back and hip pain, joint sprain, and strain
arthropathy. (R. at 60.) Dr. Torello also found that Plaintiff should avoid concentrated exposure
to hazards (machinery, heights, etc.). (R. at 61.) On October 25, 2011, Linda Hall, M.D.,
reviewed Plaintiff’s records upon reconsideration and essentially affirmed Dr. Torello’s
assessment. (R. at 70-71.)
IV. THE ADMINISTRATIVE DECISION
The ALJ found that Plaintiff met the insured status requirements of the Social Security
Act through March 31, 2004. (R. at 13.) Accordingly, Plaintiff was required to establish
disability on or before March 31, 2004 to be entitled to a period of disability benefits. At step
one of the sequential evaluation process, 2 the ALJ found that Plaintiff had not engaged in

2

Social Security Regulations require ALJs to resolve a disability claim through a fivestep sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a
dispositive finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d
727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and answers five
questions:
1.
2.
3.

4.
5.

Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant’s residual functional capacity, can the claimant
perform his or her past relevant work?
Considering the claimant’s age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?

See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
9

substantially gainful activity from her alleged onset date of October 29, 2001 through her date
last insured. (Id.) The ALJ found that through her date last insured, Plaintiff had the severe
impairment of degenerative disc disease. (Id.) She further found that through the date last
insured, Plaintiff did not have an impairment or combination of impairments that met or
medically equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (R. at 14.) At step four of the sequential process, the ALJ set forth Plaintiff’s RFC
as follows:
[T]hrough the date last insured, the [Plaintiff] has the residual functional capacity
to perform light work as defined in 20 CFR 404.1567(b). She could only
occasionally climb stairs and ramps, balance, stoop, crouch, kneel, and crawl, and
could never climb ladders, ropes, and scaffolds. She must avoid concentrated
exposure to extreme heat, extreme cold, vibration, and all hazards including
unprotected heights and dangerous machinery.
(Id.) The ALJ found that Plaintiff’s statements concerning the intensity, persistence, and limiting
effects of her symptoms were not entirely credible. (R. at 15.) The ALJ assigned “significant
weight” to the opinions of the state agency reviewing physicians, Drs. Torello and Hall. The ALJ
gave “greater weight” to the opinion of Dr. Brendemuehl. (R. at 17.) Relying on the VE’s
testimony, the ALJ concluded that Plaintiff is able to perform jobs that exist in significant
numbers in the national economy. (R. at 22.) She therefore concluded that Plaintiff was not
disabled under the Social Security Act. (Id.)
V.

STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
10

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is
defined as ‘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.’” Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“‘take into account whatever in the record fairly detracts from [the] weight’” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)). Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision
of the Commissioner will not be upheld where the SSA fails to follow its own regulations and
where that error prejudices a claimant on the merits or deprives the claimant of a substantial
right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007)).
VI.

ANALYSIS

Plaintiff raises several contentions in her Statement of Errors. First, she contends that the
ALJ’s reliance on the opinion of Dr. Brendemuehl regarding the severity of Plaintiff’s
11

impairment was misplaced. Second, Plaintiff contends that the ALJ drew conclusions at step
three and step four that were not supported by the medical evidence she cited. Finally, Plaintiff
asserts that the ALJ failed to follow the requirements of SSR 96-7p and 20 C.F.R.
§404.1529(c)(3) in finding that Plaintiff’s pain allegations were not entirely credible. The
Undersigned concludes that the ALJ erred in failing to consider all of the evidence in the record
in determining whether Plaintiff met Listing 1.04. This finding obviates the need for in-depth
analysis of Plaintiff’s remaining assignments of error. Thus, the undersigned need not resolve
the alternative bases Plaintiff asserts to support reversal and remand. Nevertheless, on remand,
the ALJ may consider Plaintiff’s remaining assignments of error if appropriate.
Plaintiff contends that the ALJ failed to address evidence at step three that supported a
finding that she either met or medically equaled Listing 1.04, specifically, subsection A. She
asserts that the ALJ’s failure to thoroughly analyze her physical impairments in relation to
Listing 1.04 amounts to skipping step three of the evaluation process. She cites to Reynolds v.
Commissioner of Social Security to support her contention that this case should be remanded for
further review of the evidence at step three. 424 F. App’x 411, 416 (6th Cir. 2011).
A claimant’s impairment must meet every element of a Listing before the Commissioner
may conclude that he or she is disabled at step three of the sequential evaluation process. See 20
C.F.R. § 404.1520; Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 855 (6th Cir.
1986). The claimant has the burden to prove that all of the elements are satisfied. King v. Sec’y
of Health & Human Servs., 742 F.2d 968, 974 (6th Cir. 1984). “An administrative law judge
must compare the medical evidence with the requirements for listed impairments in considering
whether the condition is equivalent in severity to the medical findings for any Listed
12

Impairment.” Reynolds, 424 F. App’x. at 415. The regulations provide that in making a medical
equivalence determination, the Social Security Administration will “consider the opinion given
by one or more medical or psychological consultants designated by the Commissioner.” 20
C.F.R. § 404.1526(c). Nevertheless, “[t]he burden of providing a . . . record . . . complete and
detailed enough to enable the Secretary to make a disability determination rests with the
claimant.” Landsaw v. Sec’y of Health & Human Servs., 803 F.2d 211, 214 (6th Cir. 1986). It is
not sufficient to come close to meeting the conditions of a Listing. See, e.g., Dorton v. Heckler,
789 F.2d 363, 367 (6th Cir. 1989) (Commissioner’s decision affirmed where medical evidence
“almost establishes a disability” under Listing).
“The Sixth Circuit has declined to adopt a blanket rule that remand is required whenever
an ALJ ‘provides minimal reasoning at step three of the five-step inquiry.’” Wischer v. Comm’r
of Soc. Sec., No. 13-cv-810, 2015 WL 518658, at *12 (S.D. Ohio Feb. 6, 2015) (quoting Forrest
v. Comm’r of Soc. Sec., 591 F. App’x 359, 365 (6th Cir. 2014)). The Sixth Circuit has found an
ALJ’s conclusory findings at step three to be harmless error where the plaintiff did not put forth
sufficient evidence to demonstrate that his or her impairments met or medically equaled the
severity of the listing. See Smith-Johnson v. Comm’r of Soc. Sec., 579 F. App’x 426, 432 (6th
Cir. 2014); but see Forrest, 591 F. App’x at 365 (citing Reynolds, 424 F. App’x at 416 (finding
that an ALJ erred by providing no reasons to support his finding that a specific listing was not
met, and holding that the error was not harmless because it was possible that the claimant has put
forward sufficient evidence to meet the listing)). Thus, in instances where the ALJ does not
properly evaluate a listing, the Court must “determine whether the record evidence raises a
substantial question as to [Plaintiff’s] ability to satisfy each requirement of the listing.” Smith13

Johnson, 579 F. App’x at 432-33. The claimant “must point to specific evidence that
demonstrates he [or she] reasonably could meet or equal every requirement of the listing.” Id. at
432. “Absent such evidence, the ALJ does not commit reversible error by failing to evaluate a
listing at Step Three.” Id. at 433.
Accordingly, contrary to Plaintiff’s assertion, remand is not required in every instance in
which an ALJ’s findings at step three are cursory. Rather, the Plaintiff must first raise a
substantial question as to whether her back impairment meets or medically equals in severity the
requirements of a Listing. In this instance, however, it is apparent that the ALJ did not consider
all of the evidence in determining whether Plaintiff met Listing 1.04. Further, Plaintiff has raised
a substantial question as to whether she could reasonably meet every element of Listing 1.04.
Listing 1.04(A), for disorders of the spine, provides as follows:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or
the spinal cord. With:
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) . . .
20 C.F.R. § 404, Appendix 1, § 1.04(A).
For her step three determination regarding whether Plaintiff met Listing 1.04, the ALJ
found as follows:
. . . The [Plaintiff’s] degenerative disc disease does not meet or medically equal
the criteria of listing 1.04 because there is no evidence of (A) nerve root
compression characterized by neuron-anatomic distribution of pain, limitations of
motion of the spine, motor loss or atrophy with associated muscle weakness or
14

muscle weakness accompanied by sensory or reflex loss, and with regard to lower
back, no positive straight-leg raising test, or (B) social arachnoiditis, confirmed by
an operative note or pathology report of tissue biopsy, or by an appropriate
medically acceptable imaging, manifested by severe burning or painful
dysesthesia, resulting in the need for changes in position or posture more than
every two hours, or (C) lumbar spinal stenosis resulting in pseudoclaudation,
established by findings on appropriate medically acceptable imaging, manifested
by chronic nonradicular pain and weakness, and resulting in an inability to
ambulate effectively.
(R. at 14.)
A review of the ALJ’s step three findings demonstrates that the ALJ did not consider all
of the objective evidence from the relevant time period in determining that Plaintiff did not meet
or medically equal Listing 1.04(A). First, the ALJ did not mention Plaintiff’s 2001 MRI that
revealed “conceivable impingement upon the S1 nerve root.” (R. at 395-96.) This evidence
demonstrates that Plaintiff could possibly demonstrate nerve root compression. In her
Memorandum in Opposition, the Commissioner counters that this evidence does not constitute
“definitive acceptable diagnostic imaging” to show that Plaintiff had compromise or
impingement of a nerve root. The Commissioner’s post hoc rationalization, however, cannot
cure the ALJ’s failure to acknowledge this evidence, resolve any inconsistencies related to it, and
explain why it does not meet the Listing.
Further, in discussing whether Plaintiff met Listing 1.04, the ALJ found that the record
contained “no positive straight-leg raising.” (R. at 14.) As Plaintiff points out, however,
Plaintiff had positive straight-leg raise tests on March 11, 2002 and August 14, 2003. Id. (citing
R. at 257, 310.) Additionally, on September 23, 2002, a straight-leg raising test was positive at
approximately 25 degrees on active and passive movement of the left lower extremity. (R. at
408.) On examination on April 25, 2005, although outside of the relevant timeframe, straight-leg
15

raise testing was again positive on the left side. (R. at 487.) While Plaintiff had negative
straight-leg raise tests on other occasions, it was inaccurate for the ALJ to conclude that Plaintiff
had no negative straight-leg raise tests. Accordingly, it appears that the ALJ did not consider all
of the evidence in the record in deciding that Plaintiff did not meet Listing 1.04. Furthermore,
the error is not harmless because this evidence could possibly fulfill the requirement of straightleg raise in both the sitting and supine position. The ALJ must review this evidence to determine
if the Listing is met.
Finally, Plaintiff asserts that several examiners noted limitation of motion and complaints
of radiating pain. She further asserts that in August and November of 2002, she was noted to
have leg and arm weakness, which are indications of neurological impairments. (citing Id.
(citing R. at 300, 308.) Further, the record includes evidence that Plaintiff had diminished
reflexes. (R. at 242, 248.) Given that Plaintiff has put forward specific evidence that she could
possibly meet the listing, remand is required for further consideration.
The Commissioner asserts that the ALJ properly relied on Dr. Brendemuehl’s opinion in
determining that Plaintiff did not meet the Listing. While the ALJ properly considered the
opinion of Dr. Brendemuehl, she was also required to consider the whole record. Moreover, Dr.
Brendemuehl also failed to specifically mention any of the positive straight-leg raise tests or that
2001 MRI revealed “conceivable” impingement on Plaintiff’s nerve root at S1 in her testimony.
Accordingly, because the ALJ failed consider all of the relevant evidence in rendering her
decision, and because Plaintiff presented specific evidence from which it was possible for the
ALJ to find that she meets or equals the Listing, the ALJ was required to evaluate the evidence
and articulate the reasons why the Listing was not met. Here, requiring the ALJ to articulate her
16

reasons at step three “is not merely a formalistic matter of procedure, for it is possible that the
evidence [Plaintiff] put forth could meet this listing.” Reynolds, 424 F. App’x at 416. “In short,
the ALJ needed to actually evaluate the evidence, compare it to Section 1.0[4] 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.”
Id.
Accordingly, it is RECOMMENDED that the Court REVERSE the Commissioner’s
Decision and REMAND this case back to the Commissioner and the ALJ for further fact find
and clarification of her findings at step three.
VII.

CONCLUSION

Due to the error outlined above, Plaintiff is entitled to an order remanding this case to the
Social Security Administration pursuant to Sentence Four of 42 U.S.C. § 405(g). Accordingly,
the Undersigned RECOMMENDS that the Court REVERSE the Commissioner of Social
Security’s non-disability finding and REMAND this case to the Commissioner and the ALJ
under Sentence Four of § 405(g) for further consideration consistent with this Report and
Recommendation.
VIII.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
17

Fed. R. Civ. P. 72(b).
The parties are specifically advised that the 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
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
Date: August 17, 2015

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

18