Kerns v. Commissioner of Social Security
ORDER adopting Report and Recommendations re 14 Report and Recommendations.. Signed by Judge James L. Graham on 4/11/2017. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Jeffrey D. Kerns,
Case No. 2:16-cv-57
Plaintiff Jeffrey D. Kerns brings this action under 42 U.S.C.
§405(g) for review of a final decision of the Commissioner of
disability insurance benefits. Plaintiff claimed to be disabled as
a result of an injury to his right knee sustained on the job while
employed as a police officer.
The record indicates that plaintiff
has had two knee surgeries, and that the initial injury was
aggravated by later falls.
The administrative law judge (“ALJ”)
reviewed the medical evidence in the record and held a hearing, at
which plaintiff, accompanied by counsel, and a vocational expert
In a decision dated May 14, 2014, the ALJ found that
plaintiff had severe impairments consisting of osteoarthritis of
the right knee, sprains and strain of the right knee, leg, hip and
thigh, status post knee surgery times two, and complex regional
After considering the entire
record, the ALJ found that plaintiff has the residual functional
capacity (“RFC”) to perform sedentary work,
except that he requires a sit/stand option with allowance
to alternate sitting or standing positions for up to two
minutes, at 30-minute intervals without going off-task.
He should never operate foot controls with his right
foot. The claimant should never climb ladders, ropes or
scaffolds, kneel, crouch or crawl. He can occasionally
climb ramps and stairs, balance, and stoop. He should
avoid concentrated exposure to extreme cold and heat,
wetness, and humidity. The claimant should avoid all
exposure to unprotected heights, hazardous machinery and
commercial driving. He is limited to performing simple,
routine and repetitive tasks requiring only simple
decisions, with no fast-paced production requirements and
few workplace changes because of medication side effects
Citing the testimony of the vocational expert, the ALJ
concluded that there were jobs in the economy which plaintiff could
perform, and that he was not disabled.
plaintiff’s March 24, 2017, objections (Doc. 15) in response to the
March 10, 2017, report and recommendation of the magistrate judge
(Doc. 14), recommending that the decision of the Commissioner be
I. Standard of Review
If a party objects within the allotted time to a report and
recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
§ 636(b)(1); see also Fed. R. Civ. P. 72(b).
Upon review, the
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1).
The court’s review “is limited to determining whether the
Commissioner’s decision ‘is supported by substantial evidence and
was made pursuant to proper legal standards.’”
Ealy v. Comm’r of
Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,
42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive.”).
Put another way, a decision supported by
substantial evidence is not subject to reversal, even if the
reviewing court might arrive at a different conclusion.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
exists when ‘a reasonable mind could accept the evidence as
adequate to support a conclusion [and] . . . presupposes that there
is a zone of choice within which the decision-makers can go either
way, without interference by the courts.’”
Blakley v. Comm’r of
Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (internal citation
Even if supported by substantial evidence, however, “‘a
[Commissioner] 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 v. Comm’r of Soc. Sec., 582 F.3d
647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478
F.3d 742, 746 (6th Cir. 2007)).
A. ALJ’s Consideration of Listing 1.02A
At step three of the disability analysis, the ALJ must
determine whether the claimant’s impairment is of a severity
sufficient to meet or medically equal the criteria of an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
impairment is of a severity sufficient to meet or medically equal
the criteria of a listing and meets the duration requirement in 20
C.F.R. §404.1509, then the claimant is disabled.
At step three of
the evaluation process, it is the burden of the claimant to show
that he meets or equals the listed impairment.
Thacker v. Social
Sec. Admin., 93 F. App’x 725, 727-28 (6th Cir. 2004)(citing Buress
v. Sec’y of Health & Human Servs., 835 F.2d 139, 140 (6th Cir.
The ALJ addressed whether plaintiff met the requirements of
Listing 1.02A, as follows:
The undersigned has considered the severity of the
claimant’s osteoarthritis and sprains and strains of the
right knee/leg pursuant to section 1.02A of the listing
The claimant does not have a major
characterized by gross anatomical deformity (e.g.
subluxation, contracture, bony or fibrous ankylosis,
instability) and chronic joint pain and stiffness with
signs of limitation of motion or other abnormal motion of
the affect[ed] joint(s), with A) involvement of one major
peripheral weight-bearing joint (i.e. hip, knee, or
ankle), resulting in inability to ambulate effectively,
as defined in 1.00B2b. Therefore, his impairments are
not of listing level severity.
The above language essentially quotes the text of
Plaintiff’s first objection addresses the magistrate judge’s
conclusion that the ALJ adequately explained why plaintiff did not
meet the requirements of Listing 1.02A.
The “good reasons”
requirement applicable to treating physician opinions does not
apply to the step-three analysis.
Forrest v. Comm’r of Soc. Sec.,
591 F. App’x 359, 364-65 (6th Cir. 2014).
Rather, the regulations
governing the five-step inquiry process only require the ALJ to
consider all evidence in the case record, and, at step three, to
consider the medical severity of the claimant’s impairments.
at 365; see also Bledsoe v. Barnhart, 165 F. App’x 408, 411 (6th
Cir. 2006)(ALJ not required to spell out every consideration that
decision may be upheld where the ALJ made sufficient factual
findings elsewhere in his decision to support the conclusion at
Forrest, 591 F. App’x at 366.
Even if the ALJ’s
factual findings fail to support the step-three determination, any
error in that regard is harmless if the court finds, based on its
own review of the record, that plaintiff has failed to show that
his impairments met or medically equaled in severity the listed
In light of the ALJ’s extensive sixteen-page discussion of the
medical records in this case, the magistrate judge concluded that
the ALJ considered all of the evidence in the record, as well as
the medical severity of plaintiff’s impairments, in determining
that he did not meet the listing.
Doc. 14, p. 12.
argues that the magistrate judge engaged in impermissible post-hoc
supported the ALJ’s step-three determination. The magistrate judge
properly examined the record evidence as a whole in deciding
whether that evidence supported the ALJ’s step-three determination.
See Forrest, 591 F. App’x at 366; see also Ealy, 594 F.3d at 512
(review of the Commissioner’s findings must be based on the record
as a whole); Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th
By way of non-exhaustive examples, records summarized by the
ALJ which would support his step-three determination include: MRI
reports and x-rays in 2010 and 2011 which were normal or showed no
significant abnormalities, see PAGEID 76-79; x-rays in June of 2011
which revealed mild medial joint line narrowing, see
the January 12, 2012 reports of Hammam Hadi Akbik, M.D. a pain
specialist, and Frank R. Noyes, M.D., an orthopedist, who noted
that plaintiff had full range of motion in his right knee (except
for some restriction on flexion), full strength in the lower
extremities, and a steady gate, with no indication of a ligament
injury to the knee joint, see PAGEID 83; an MRI in February of
2012, which revealed that the areas affected by plaintiff’s second
knee surgery had nearly healed, see PAGEID 85; Dr. Akbik’s October
17, 2012, evaluation which noted that plaintiff’s gait was steady
and his muscle strength was normal, see PAGEID 87; and the March
14, 2013, report of Dr. Noyes stating that plaintiff’s arthritis
had not progressed and was not bone-on-bone, and that he was not a
candidate for knee replacement in the near future, see PAGEID 87.
The ALJ gave controlling weight to the June 2012 opinion of Dr.
Noyes, who concluded that plaintiff had a twenty percent lower
extremity impairment from an orthopedic standpoint.
The ALJ also found that plaintiff’s complaints of pain were only
crutches, there was no evidence that crutches were prescribed; that
Gary Hinzman, M.D., the state agency medical consultant, did not
opine that plaintiff required the use of crutches; that on June 12,
2012, plaintiff went to two evaluations, but only took crutches to
one of them; and that plaintiff had a normal and steady gait and
was able to walk independently when examined by Dr. Akbik on August
9, 2012, and October 17, 2012.
The ALJ relied on Dr.
rehabilitation counseling, as opposed to disability benefits, as
indicating a belief that plaintiff was capable of performing a
lighter job than his former job as a police officer.
The ALJ also cited the September 5, 2013, report of Dr. Noyes, who
observed that plaintiff’s complaints of pain were out of proportion
to what would be expected given his pathology.
The court concludes that the ALJ made sufficient findings to
support his step-three determination. The court further concludes,
based on its own review of the record, that the ALJ’s step-three
finding that plaintiff failed to meet the criteria for Listing
1.02A disability is supported by substantial evidence. Plaintiff’s
first objection is denied.
B. Challenge to the RFC
A claimant’s RFC is the most that a claimant can do despite
his or her limitations.
20 U.S.C. §404.1545(a)(1).
§§404.1527(e)(2) and 404.1546(c).
The ALJ is
In making that determination,
the ALJ must evaluate all the medical evidence as well as the
633 (6th Cir. 2004).
Webb v. Comm’r of Soc. Sec., 368 F.3d 629,
“Discretion is vested in the ALJ to weigh all
Collins v. Comm’r of Soc. Sec., 357 F. App’x 663,
Commissioner’s decision if it is based on substantial evidence,
even if substantial evidence would also have supported the opposite
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376
(6th Cir. 2013).
Plaintiff argues that the ALJ erred in failing to incorporate
a prohibition against squatting in the RFC.
Plaintiff relies on
the opinion of Howard A. Pinsky, D.O., who performed an independent
consultative medical examination of plaintiff on June 12, 2012.
Dr. Pinsky concluded that plaintiff should never push, pull, squat,
kneel, stand, or walk.
The ALJ thoroughly summarized
Dr. Pinsky’s evaluation, including the recommended limitation on
However, the ALJ gave limited weight to
plaintiff on one occasion, and that Dr. Pinsky’s opinion that
plaintiff is precluded from all standing and walking was not
supported by the record.
The ALJ also considered the
October 14, 2010, work form completed by plaintiff’s orthopedist,
Paul A. Nitz, M.D., which stated that plaintiff should not perform
The ALJ noted that these restrictions
(which followed plaintiff’s August 9, 2010, knee surgery) were
meant to be temporary.
decision should be upheld because the ALJ did not ignore, but
determination was supported by substantial evidence. Doc. 14, p.
In regard to plaintiff’s ability to squat, the magistrate
judge noted physical therapy notes dated October 25, 2011, which
stated that plaintiff “was able to do 20 repetitions on right lower
extremity exercises and wall squat,” and physical therapy notes
dated November 1, 2011, and November 3, 2011,1 which reported that
The date of November 11, 2016, at page 14 of the report and
recommendation is a typographical error; the exhibits referred to
plaintiff was doing mini-squats which he tolerated well. Doc. 14,
The magistrate judge did not engage in improper post-hoc
rationalization in pointing to this record evidence as support for
the lack of a specific prohibition against squatting in the RFC.
Ealy, 594 F.3d at 512.
In any event, the records cited by the
magistrate judge were also summarized by the ALJ in his decision,
and were obviously considered by him as well.
See PAGEID 81.
Even assuming that the failure to include a prohibition
against squatting in the RFC was error, it was not prejudicial due
to the fact that the RFC states that plaintiff should never crouch.
The term “squat” is not a commonly used term in
vocational parlance and is not defined in the Social Security
Wright v. Astrue, No. 5:09-CV-546-FL, 2010 WL
5056020, *9 (E.D.N.C. Sept. 16, 2010), report and recommendation
adopted by, 2010 WL 5055899 (E.D.N.C. Dec. 6, 2010).
term “crouch” is defined as “bending the body downward and forward
by bending both the legs and spine.”
S.S.R. 85-15, 1985 WL 56857,
Courts have concluded that the terms “crouch” and
“squat” are synonymous.
See Lawson v. Astrue, No. 3:10-212-HFF-
JRM, 2011 WL 4502026, *11 (D.S.C. July 29, 2011), report and
recommendation adopted by, 2011 WL 4527370 (D.S.C. Sept. 29, 2011);
Wright, 2010 WL 5056020 at *9; Chavez v. Astrue, 699 F.Supp.2d
1125, 1133, n. 5 (C.D. Cal. 2009)(ALJ’s use of the term “crouch”
Additionally, a crouching limitation has little, if any, impact on
the sedentary occupational base in which plaintiff was placed by
are physical therapy notes from November 1 and 3, 2011.
See S.S.R. 96-9p, 1996 WL 374185, *7 (1996)(crouching is
an activity not usually required in sedentary work); S.S.R. 83-14,
1983 WL 31254, *2 (1983)(explaining that “to perform substantially
all of the exertional requirements of most sedentary and light
jobs, a person would not need to crouch”).
rulings would also apply to squatting.
This language in the
Because the prohibition
against crouching in the RFC essentially precludes squatting as
well, plaintiff’s second objection is not well taken.
Having reviewed the record de novo, the court determines that
there is substantial evidence supporting the ALJ’s determination
that plaintiff is not disabled, as defined in the Social Security
The court hereby adopts and affirms the magistrate judge’s
report and recommendation (Doc. 14).
15) are denied.
Plaintiff’s objections (Doc.
The Commissioner’s decision is affirmed, and this
action is dismissed.
Date: April 11, 2017
The clerk shall enter final judgment.
s/James L. Graham
James L. Graham
United States District Judge
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