Siefert v. Commissioner of Social Security

Filing 16

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS that Plaintiff's Statement of Errors be sustained to the extent that this case be remanded to the Commissioner pursuant to 42 U.S.C. § 405(g). Objections to R&R due by 7/14/2017. Signed by Magistrate Judge Terence P. Kemp on 6/30/2017. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Thomas C. Siefert,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No. 2:16-cv-162
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Thomas C. Siefert, 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 May 14, 2013, and alleged that Plaintiff
became disabled on May 10, 2010.

That date was later amended to

May 16, 2013.
After initial administrative denials of his claim,
Plaintiff was given a hearing before an Administrative Law Judge
on December 8, 2014.
denied benefits.

In a decision dated March 9, 2015, the ALJ

That became the Commissioner’s final decision

on December 30, 2015, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on June 20, 2016.

Plaintiff filed a

statement of specific errors on August 4, 2016.

The Commissioner

responded on November 23, 2016 and Plaintiff filed a reply brief
on December 7, 2016.
II.

The case is now ready to decide.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 61 years old as of the date of the
hearing and who has a twelfth grade education, testified as
follows.

His testimony appears at pages 43-76 of the

administrative record.

First, Plaintiff was asked about the last time he worked.
He responded that he last worked a 40-hour week in May, 2010, and
went part-time after that.
of 2013.

He eventually stopped working in May

He worked at a hardware store that he had once owned

but which had been placed in his wife’s name in 2010.

Plaintiff

waited on customers and occasionally ran the cash register.

He

had done some work for Schodorf Truck Body from 2005 to 2007,
acting as a customer liaison.
40-hour week in that position.

He did not normally work a full
Other jobs he held included

selling trucks and being a shop manager and sales person for an
equipment company.
When asked why he could no longer work, Plaintiff said that
he had problems with his knee, with venous insufficiency, and
with panic attacks and depression.
could not afford it.

He needed knee surgery but

He rated his pain as a ten out of ten on

some days, but medication reduced it to a six or a seven.
Plaintiff would not take narcotic pain medication, but used
Excedrin and Tramadol and also tried a wrap and ice, but those
treatments did not help much.

He had a cane and a walker

prescribed for him because he fell several times.

His family

doctor, Dr. Trapp, had also prescribed medication for his anxiety
and depression, and he was also attending therapy sessions.

He

did have a gap in treatment when he was feeling fairly well, but
had started again before the hearing.
Plaintiff was asked to describe his anxiety attacks.

He

testified that they began in the stomach area and then “started
working on my brain.”
anything.

At times he would simply be afraid to do

Lying down and relaxing, and then taking his

medication, would help.
times weekly.

He experienced attacks two or three

He also testified that he could lift ten pounds

with his left hand and do some laundry.

Plaintiff could manage

his own finances and do some pet care.

At times, his legs would

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swell and require him to elevate them.

He was also easily

distracted and was uncomfortable in large groups of people (more
than 12).
III.

The Medical Records

The pertinent medical records are found beginning at page
270 of the record.

They can be summarized as follows.

Because

Plaintiff’s two claims of error relate only to his physical
impairments, the Court will limit its review to records related
to that issue.
Plaintiff had his right knee x-rayed on August 23, 2010.
The study showed some spurring about the lateral compartment and
at the patellofemoral articulation.

Dr. Meyer, who read the x-

ray, interpreted it to show degenerative changes, but
chondromalacia could not be excluded.

(Tr. 329).

Notes from

Plaintiff’s treating physician, Dr. Trapp, show a diagnosis of
osteoarthritis as early as 2010.

(Tr. 330-32).

showed a slight progression in this disease.

A 2013 x-ray

(Tr. 339).

On September 30, 2013, Dr. Trapp completed a multi-page
questionnaire relating to Plaintiff’s functional capacity.

The

important findings on that questionnaire are that Plaintiff could
not lift more than ten pounds (and could only do that
occasionally), could only sit, stand, and walk for short periods
of time, and had to lie down for four hours a day.

He also had

to use a cane to walk and had extreme limitations on the use of
his right hand and arm due to the need to use a cane.

Dr. Trapp

further concluded that Plaintiff could not tolerate humidity,
wetness, extreme cold, and vibrations, and could not walk a block
on uneven surfaces.

(Tr. 333-38).

On August 21, 2014, Dr. Trapp filled out a form relating to
section 1.02A of the Listing of Impairments.

On that form, he

said that Plaintiff had a major dysfunction of a weight-bearing
joint (his right knee) characterized by swelling, pain, and
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painful ambulation, that he had chronic pain and stiffness in
that joint, that he could not fully bend or straighten his knee,
and that he could not walk a block at a reasonable pace, use
standard public transportation, do routine activities like
grocery shopping or banking, or climb several stairs at a
reasonable pace with use of a handrail.

Dr. Trapp reiterated

that Plaintiff required a cane. (Tr. 340-41).

He also provided a

copy of the prescription he had written for that cane on June 20,
2014, and a copy of a prescription for a walker written on
October 28, 2014.

(Tr. 342, 394).

The only other pertinent records are some notes from Dr.
Trapp’s office for what are described as “routine visits” which
took place in 2013 and 2014.

They all contain the same notation

about Plaintiff’s knee as the note from 2010, which reads as
follows: “Knees:
of the knee.

General/bilateral:

Knee motion was normal.

motion of the knee.

No tenderness on palpation
No pain was elicited by

Right knee: Examined.”

(Tr. 368-88).

There

is also a letter from a counselor dated October 29, 2014 stating
that she observed that Plaintiff appeared to be in a great deal
of pain from his knee, walked with a cane, and had great
difficulty getting up after a 60-minute counseling session,
needing her help to get out of the chair.

(Tr. 391).

The records were reviewed by state agency physicians.

The

first, Dr. Hughes, concluded that Plaintiff could do a range of
light work with some restrictions, and commented that it was
unclear why Plaintiff was using a cane when his gait and station
were normal.

(Tr. 98-100).

The second, Dr. Das, thought

Plaintiff could do medium work with some limitations.

In her

opinion, which is dated September 16, 2013, she cited, as an
explanation for the exertional limitations she imposed, “walks
with a cane.” (Tr. 111-12).

Both evaluations predate the two

opinions given by Dr. Trapp.
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IV.

The Vocational Testimony

Dr. Michael Klein was called to testify as a vocational
expert at the administrative hearing.

His testimony begins at

page 77 of the administrative record.
Dr. Klein first testified about Plaintiff’s past work.

He

said that the job of retail sales attendant was light and semiskilled.

Plaintiff also worked as a retail manager, which was

light and skilled; the same was true of his jobs as a truck body
salesperson and a service writer, although if the service writer
jobs also involved running a parts department, it could have been
medium or even heavy.
Dr. Klein was next asked questions about a hypothetical
person with Plaintiff’s age, education, and experience who could
perform light work but could kneel, crouch, and climb ramps and
steps only occasionally and could never crawl, climb ladders,
ropes or scaffolds.

The person also had to avoid workplace

hazards such as unprotected heights and moving mechanical parts.
According to Dr. Klein, such a person could do Plaintiff’s past
retail sales and management jobs as well as the truck body sales
job.

He or she could also work as an assembler, desk clerk, and

marker or labeler.

If the person also could do only simple,

routine tasks and not at a production rate pace, the assembler
job would be eliminated, but the desk clerk and marker or labeler
jobs would remain.
Lastly, Dr. Klein testified that someone who could only sit,
stand, and walk for up to four hours in a workday, and who had to
lie down every four hours, could not be gainfully employed.
Also, if someone who could otherwise do light work had to use a
cane, that person could not do any of Plaintiff’s past jobs or
the other light jobs Dr. Klein identified.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 12-

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31 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
meets the insured status requirements of the Social Security Act
through June 30, 2018.

Second, she found that Plaintiff had not

engaged in substantial gainful activity since his amended alleged
onset date.

Going to the next step of the sequential evaluation

process, the ALJ concluded that Plaintiff had only two severe
impairments: right knee osteoarthritis and obesity.

The ALJ also

found that these impairments did not, at 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 could perform light work
but could kneel, crouch, and climb ramps and steps only
occasionally and could never crawl, climb ladders, ropes or
scaffolds.

He also had to avoid workplace hazards such as

unprotected heights and moving mechanical parts.
With these restrictions, the ALJ concluded that Plaintiff
could still perform his past jobs of retail sales attendant,
retail manager, and truck body salesperson.

That finding is

inconsistent with a determination of disability.

Consequently,

the ALJ decided that Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In his statement of errors, Plaintiff raises these issues:
(1) the ALJ erred by not considering whether Plaintiff’s physical
impairment met or equaled Section 1.02A of the Listing of
Impairments; and (2) the ALJ’s residual functional capacity
finding did not account for Plaintiff’s use of a cane.

These

issues are evaluated under the following legal standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

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Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

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.

Section 1.02A

Plaintiff acknowledges that the ALJ analyzed his knee
impairment under Section 1.02A.

However, he argues that the ALJ

did not compare the relevant evidence to the criteria enumerated
in the Listing.
The ALJ correctly recited the requirements of this section
of the Listing, which reads:
1.02 Major dysfunction of a joint(s) (due to any
cause): Characterized by gross anatomical deformity
(e.g., subluxation, contracture, bony or fibrous
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ankylosis, instability) and chronic joint pain and
stiffness with signs of limitation of motion or other
abnormal motion of the affected joint(s), and findings
on appropriate medically acceptable imaging of joint
space narrowing, bony destruction, or ankylosis of the
affected 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;
OR
B. Involvement of one major peripheral joint in each
upper extremity (i.e., shoulder, elbow, or wrist-hand),
resulting in inability to perform fine and gross
movements effectively, as defined in 1.00B2c.
Section 1.00B2b, to which this section refers, says that the
inability to ambulate effectively is “an extreme limitation of
the ability to walk” which consists of “having insufficient lower
extremity functioning ... to permit independent ambulation
without the use of a hand-held assistive device(s) that limits
the functioning of both upper extremities.”

Ineffective

ambulation includes, but is not limited to, “the inability to
walk without the use of a walker, two crutches or two canes, the
inability to walk a block at a reasonable pace on rough or uneven
surfaces, the inability to use standard public transportation,
the inability to carry out routine ambulatory activities, such as
shopping and banking, and the inability to climb a few steps at a
reasonable pace with the use of a single hand rail.”
In analyzing Plaintiff’s knee condition, the ALJ made
several key findings.

First, she said that the record did not

support a finding of “gross anatomical deformity” of the knee
because there was “no evidence of joint space narrowing, bony
destruction or ankylosis,” citing to Exhibit 5F, p. 10, which is
the 2010 x-ray showing only degenerative changes to the knee, and

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to Exhibit 8F, which is the 2013 x-ray.

(Tr. 23).

Second, she

found that there was no evidence that Plaintiff needed either two
canes or crutches in order to walk.

After noting that Plaintiff

had been prescribed a cane, she pointed to records showing that
he had normal gait and station through at least April, 2013, that
his physical examinations produced mostly normal findings, and
that his knee was stable with normal range of motion through
September, 2014.

She also relied on the x-rays, which showed

only mild progression of his disease since 2010, and Dr. Pratt’s
statement in September, 2013 that he needed only a single cane.
She acknowledged that he had been prescribed a walker in October
of 2014 and also acknowledged, at least implicitly, that Dr.
Pratt had completed the questionnaire about section 1.02A, but
found that his “opinions are ... inconsistent with the totality
of the evidence, which reflects normal gait and station and
musculoskeletal and neurological findings with no evidence of
subsequent traumatic event or diagnostic imaging necessitating
the use of an ambulatory aid.”

(Tr. 23).

It appears from this

language that she rejected Plaintiff’s claim that he needed even
one cane - a cane being an “ambulatory aid” - but because the
need to use two canes, crutches, or a walker is a required
element of disability under section 1.02A, she found he did not
qualify for disability under that part of the Listing.
Plaintiff attacks this analysis as ignoring the opinion of
Dr. Trapp.

He notes that Dr. Trapp said, contrary to the ALJ’s

findings, that Plaintiff did meet the various criteria for
disability specified in section 1.02A, including an inability to
ambulate effectively and the need to use a walker, and that the
ALJ had no basis for rejecting his conclusions.

Plaintiff also

asserts that the x-rays in question did show bony destruction
(i.e. osteoarthritis) and that the ALJ was simply wrong when she
said they did not.

The Commissioner responds that moderate

osteoarthritis and joint effusion do not meet the definition of
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“joint space narrowing, bony destruction or ankylosis” and that
the absence of this prerequisite for disability under section
1.02A is enough to support the ALJ’s findings.

Additionally, the

Commissioner points out that at least as late as September, 2013,
Dr. Trapp affirmatively stated that Plaintiff did not need two
canes, crutches, or a walker, meaning that he was able to
ambulate effectively, and that both state agency reviewers
concluded that his condition did not satisfy section 1.02A.
Whether a Listing has been satisfied is primarily a medical
issue.

The parties disagree about whether the x-rays show joint

space narrowing or bony destruction.

The ALJ found they did not.

Dr. Pratt appeared to imply that they did.

The Court has

searched the state agency reviewers’ opinions for any evidence
that they either saw the two x-rays in question or conducted any
analysis of section 1.02A, and can find none.

Without some

interpretation of the x-ray evidence one way or the other, the
Court agrees that the ALJ’s conclusion on this part of the
Listing is not supported by substantial evidence.
As to the inability to ambulate effectively, the Court
agrees that the ALJ’s analysis is incomplete.

Walking with two

hand-held assistive devices is not the only way to satisfy that
criterion.

Section 1.00B2b explicitly says that examples of such

an inability “include, but are not limited to, the inability to
walk without the use of a walker, two crutches, or two canes....”
(Emphasis added).

The ALJ quoted this language (Tr. 22) but then

failed to conduct any analysis of the other possible ways in
which Plaintiff might not be able to ambulate effectively, even
though Dr. Pratt had expressed opinions about them.

The general

rejection of Dr. Pratt’s opinion on this Listing without making
mention of these specific portions of it is not sufficient to
satisfy the ALJ’s duty to provide good reasons under 20 C.F.R.
§404.1527(c).

Because of that omission, the Court and the

Plaintiff may well be left with the impression that the ALJ
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either did not appreciate the fact that Dr. Pratt had an opinion
about whether Plaintiff could, for example, walk a block at a
reasonable pace over an uneven surface or use standard public
transportation, or did not provide any reasons for rejecting
those opinions.

Cases like Rogers v. Comm’r of Social Security,

486 F.3d 234, 242 (6th Cir. 2007) and Wilson v. Comm’r of Social
Security, 378 F.3d 541, 544 (6th Cir. 2004) explain that this
uncertainty is precisely the problem that §404.1527(c) was aimed
at preventing.

Consequently, there is a need for a remand so

that the issue of whether Plaintiff’s knee condition met the
criteria for disability under Listing section 1.02A can be
further developed.
B.

Use of a Cane

As his second statement of error, Plaintiff contends that
the ALJ did not properly evaluate the evidence that he needed to
use a cane.

For many of the same reasons discussed above, the

ALJ gave no weight to Dr. Pratt’s opinion about the need for
either a cane or a walker due to what the ALJ perceived to be
normal findings on examination, including findings about gait and
station and about normal strength and range of motion.
Plaintiff makes a credible argument that Dr. Pratt’s notes,
which, as he states, typically show only that the right knee was
“examined,” are not necessarily indicative of a functional
ability beyond that described in Dr. Pratt’s subsequent opinions.
Many of the findings relied on by the ALJ are not inconsistent
with the need to use a cane while walking any distance.

The

state agency reviewers were unaware that Dr. Pratt had prescribed
a cane and, more recently, a walker.

The Court sees a

substantial overlap between this issue and the Listing issue, and
since a remand should be ordered on the former question, the ALJ,
on remand, can also revisit the issue of whether the records
support the prescription of either a cane or a walker.
VII.

Recommended Decision
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Based on the above discussion, it is recommended that the
Plaintiff's statement of errors be sustained to the extent that
this case be remanded to the Commissioner for further proceedings
pursuant to 42 U.S.C. § 405(g), sentence four.
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
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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