Kerns v. Commissioner of Social Security

Filing 16

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
EASTERN DIVISION
Jeffrey D. Kerns,
Plaintiff,
v.

Case No. 2:16-cv-57

Commissioner of
Social Security,
Defendant.
ORDER
Plaintiff Jeffrey D. Kerns brings this action under 42 U.S.C.
§405(g) for review of a final decision of the Commissioner of
Social

Security

(“Commissioner”)

denying

his

application

for

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
testified.

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
pain

syndrome/reflex

saphenous neuropathy.

sympathetic
PAGEID 73.

dystrophy

with

associated

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
and pain.
PAGEID 74.

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.
This

matter

is

before

the

PAGEID 91-92.

court

for

consideration

of

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
affirmed.
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
recommendations

to

which

objection

is

made.”

§ 636(b)(1); see also Fed. R. Civ. P. 72(b).

28

U.S.C.

Upon review, the

court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”

28

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.’”
2

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).

Mullen v.

“Substantial evidence

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
omitted).
decision

Even if supported by substantial evidence, however, “‘a
of

the

Commissioner

will

not

be

upheld

where

the

[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)).
II. Objections
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.

If the

impairment is of a severity sufficient to meet or medically equal
the criteria of a listing and meets the duration requirement in 20

3

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.
1987)).
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
of impairments.
The claimant does not have a major
dysfunction
of
a
joint(s)(due
to
any
cause),
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.
PAGEID 73-74.

The above language essentially quotes the text of

Listing 1.02A.
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.

4

Id.

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
went

into

the

step-three

determination).

The

Commissioner’s

decision may be upheld where the ALJ made sufficient factual
findings elsewhere in his decision to support the conclusion at
step three.

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
impairment.

Id.

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.

Plaintiff

argues that the magistrate judge engaged in impermissible post-hoc
rationalization

by

considering

whether

the

medical

records

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
Cir. 2001)(same).
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

5

significant abnormalities, see PAGEID 76-79; x-rays in June of 2011
which revealed mild medial joint line narrowing, see

PAGEID 80;

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.

PAGEID 86.

The ALJ also found that plaintiff’s complaints of pain were only
partially credible.
In

concluding

sedentary

work,

the

PAGEID 88.
that
ALJ

plaintiff
noted

was

that,

capable
although

of

performing

plaintiff

used

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

6

9, 2012, and October 17, 2012.
Akbik’s

recommendations

PAGEID 90.

that

The ALJ relied on Dr.

plaintiff

seek

vocational

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.

PAGEID 90.

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.

PAGEID 90.

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.
charged

with

20 U.S.C. §404.1545(a)(1).

determining

a

claimant’s

§§404.1527(e)(2) and 404.1546(c).

RFC.

The ALJ is
20

C.F.R.

In making that determination,

the ALJ must evaluate all the medical evidence as well as the
claimant’s testimony.
633 (6th Cir. 2004).
the evidence.”
668

(6th

Cir.

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,
2009).

A

reviewing

court

will

affirm

the

Commissioner’s decision if it is based on substantial evidence,
even if substantial evidence would also have supported the opposite
conclusion.

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376

(6th Cir. 2013).

7

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.

PAGEID 344.

The ALJ thoroughly summarized

Dr. Pinsky’s evaluation, including the recommended limitation on
squatting.
Dr.

PAGEID 85-86.

Pinsky’s

opinion,

However, the ALJ gave limited weight to

noting

that

Dr.

Pinsky

only

evaluated

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.

PAGEID 86.

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
squatting.

PAGEID 78.

The ALJ noted that these restrictions

(which followed plaintiff’s August 9, 2010, knee surgery) were
meant to be temporary.
The

magistrate

PAGEID 78.

judge

properly

concluded

that

the

ALJ’s

decision should be upheld because the ALJ did not ignore, but
rather

considered

Dr.

Pinsky’s

opinion,

and

because

the

RFC

determination was supported by substantial evidence. Doc. 14, p.
15.

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

1

The date of November 11, 2016, at page 14 of the report and
recommendation is a typographical error; the exhibits referred to
8

plaintiff was doing mini-squats which he tolerated well. Doc. 14,
p. 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.
PAGEID 74.

The term “squat” is not a commonly used term in

vocational parlance and is not defined in the Social Security
Rulings.

See

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).

However, the

term “crouch” is defined as “bending the body downward and forward
by bending both the legs and spine.”
*7 (1985).

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”
rather

than

inconsequential

“squat”
since

in
the

assessing
terms

are

plaintiff’s
essentially

RFC

was

synonymous).

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.
9

the RFC.

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.
III. Conclusion
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
Act.

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

10