Johnson v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATION that 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. It is further recommended that Plaintiff's alternative request for a sentence six remand be found to be moot. Objections to R&R due by 12/30/2016. Signed by Magistrate Judge Terence P. Kemp on 12/13/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Thomas G. Johnson,

:

Plaintiff,

:

v.

:
:

Commissioner of Social
Security,

Case No. 2:16-cv-172
CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

:

Defendant.

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Thomas G. Johnson, 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 December 3, 2012, and alleged that
Plaintiff became disabled on March 20, 2012.
After initial administrative denials of his claim,
Plaintiff was given a hearing before an Administrative Law Judge
on January 20, 2015.

In a decision dated February 25, 2015, the

ALJ denied benefits.

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 May 2, 2016.

Plaintiff filed a

statement of specific errors on June 16, 2016, to which the
Commissioner responded on August 24, 2016.

Plaintiff filed a

reply brief on September 7, 2016, and the case is now ready to
decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 54 years old as of the date of the
hearing and who has a high school education, testified as

follows.

His testimony appears at pages 76-85 of the

administrative record.
Plaintiff first testified that he had not worked since March
20, 2012.
to stores.

He was a truck driver for ProLogix, making deliveries
He had done that job for 33 years.

to lift up to 75 pounds.

It required him

He said that he was unable to work due

to leg pain, which radiated into his feet, and that he also had
some lower back pain.

He was using a cane at the time of the

hearing, having had surgery.
On a typical day, Plaintiff testified that he spent most of
his time lying down.
the first floor.

He did not use stairs since his room was on

He would watch television and read, although he

had some difficulty concentrating on what he was reading.
Plaintiff said he did not need assistance bathing or dressing,
and he was able to drive, although he could not sit for more than
45 minutes before needing to get out and walk around.

He often

napped during the day because he did not sleep well at night.
Plaintiff did accompany his wife grocery shopping and could walk
around the store for fifteen or twenty minutes before having to
sit down.
The surgery which Plaintiff had was on his right leg.
Immediately after that surgery, while he was still in the
hospital, he developed pain in his left leg.

He believed that he

was worse after the surgery than before it.
III.

The Medical Records

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

They can be summarized as follows.

On September 23, 2011, Plaintiff was seen in the emergency
room after having injured his back at work.

His lower back was

tender along the spine and the paraspinal areas.

He was

diagnosed with neuritis and follow-up with a specialist was
recommended.

(Tr. 231-38).

A subsequent EMG study showed mild
-2-

right S1 irritation.

(Tr. 241-42).

On April 3, 2012, Plaintiff was seen for a follow-up of left
knee surgery that was done in 2008.
working.

At that time, he was still

He had no pain in his knee but did need to hold a

handrail when using stairs.
that knee.

He did have some osteoarthritis in

(Tr. 243-44).

On August 24, 2012, Plaintiff had an MRI done of his lumbar
spine.

It showed multilevel degenerative disc disease most

prominent at L5-S1 and nerve root impingement at that level.
(Tr. 247-48).

Prior to that time, he had been seen by Dr. Chen,

a neurological spine surgeon, who commented that Plaintiff had
developed right-sided radiculopathy, probably from a displaced
disc at the L4-L5 level and other changes in the low back.
Findings included an abnormal gait and decreased muscle strength
and range of motion.

On September 25, 2012, Dr. Chen saw

Plaintiff again, and noted that he was in significant pain which
was exacerbated by changing positions and twisting.

Dr. Chen

proposed injections to pinpoint the source of pain and said that
surgery was a possibility.

(Tr. 254-58).

Dr. Holt, who had

referred Plaintiff to Dr. Chen, made several reports on
Plaintiff’s condition in 2012, noting Plaintiff’s symptoms of low
back and right leg pain, and recommended that he “avoid moderate
activity according to symptoms and should avoid aggravating
activity.” See, e.g., (Tr. 266).

Similar recommendations were

made by Dr. Holt in 2013 and early 2014, and he did not release
Plaintiff to go back to work.
In January, 2013, Plaintiff was evaluated by Dr. Hoover for
workers’ compensation purposes.

Plaintiff said that his pain was

worse with prolonged activity but helped by medication, switching
positions, or using heat and ice.

Dr. Hoover recommended a

reconditioning program if injections were successful in treating
Plaintiff’s pain.

He imposed a temporary lifting restriction of
-3-

no more than ten pounds occasionally.

(Tr. 308-11).

Dr. Yu saw Plaintiff in 2013 and noted that epidural
injections had been done by Dr. Henry, who was also managing
Plaintiff’s pain with medications, including oxycodone.

She

reviewed those results and Dr. Chen’s records and recommended a
discogram since injections did not appear to have helped.
313-14).

(Tr.

After some additional studies were done, Dr. Chen saw

Plaintiff on February 4, 2014, and recommended surgery since
Plaintiff was “quite disabled from his current situation with
continuing chronic pain symptoms rated at a 6/10 to 8/10 ....”
(Tr. 367-69).

Plaintiff had surgery on July 28, 2014.

When he

was seen by Dr. Holt for a follow-up appointment, he reported
pain in his low back and left buttock radiating down to his foot.
Straight leg raising on the left was positive.

(Tr. 403-05).

He

reported the same symptoms to Dr. Henry and was continued on his
pain medications.

He also reported to his surgeon that the right

leg pain had resolved but he had left leg pain aggravated by
walking and driving and alleviated by lying down.
was recommended.

(Tr. 426-27).

A new CT scan

That was done in February, 2015,

and showed some lateralization of the surgical screws at L5 and
S1 which could be causing pain.

A recommendation was made for

further surgery to remove that hardware.

(Tr. 440-41).

As of

the time of the ALJ’s decision, that had not occurred.
There are also state agency reviewers’ opinions in the
record, although they both date from 2013.

In March, 2013, Dr.

Manos concluded that Plaintiff could work at the light exertional
level with some restrictions based on his earlier knee
replacement and his low back injury.

(Tr. 96-98).

Dr. McKee reached the same conclusion.
IV.

In May, 2013,

(Tr. 107-09).

The Vocational Testimony

Dr. Mona Robinson was called to testify as a vocational
expert at the administrative hearing.
-4-

Her testimony begins at

page 86 of the administrative record.
First, Dr. Robinson testified about Plaintiff’s past work.
She said he did only one job, delivery driver, and that it was a
semi-skilled job typically listed as at the medium exertional
level, although Plaintiff performed it at the heavy level.
Dr. Robinson was then asked some questions about someone
with Plaintiff’s background and who could work at the light
exertional level.

However, the person could only balance

frequently and only climb ramps and stairs, stoop, kneel, crouch,
and crawl occasionally.
ropes, or scaffolds.

He or she could not climb ladders,

In response, Dr. Robinson said that such a

person could not do Plaintiff’s past work but could work as a
mail sorter, garment sorter, or marker, all of which were light,
unskilled positions.

If the same person were limited to lifting

no more than ten pounds occasionally, could frequently push,
pull, sit, and lift above shoulder level, and could occasionally
bend, twist, turn, reach below knee level, squat, kneel, stand,
and walk, Plaintiff’s past work would still be eliminated, as
would any other jobs.

The same would be true of someone who

could not complete an eight-hour work day or 40-hour work week
due to pain.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 5465 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 requirements of the Social Security
Act on December 31, 2017.

Next, he found that Plaintiff had not

engaged in substantial gainful activity since his alleged onset
date.

Going to the next step of the sequential evaluation

process, the ALJ concluded that Plaintiff had severe impairments
including degenerative disc disease of the lumbar spine and

-5-

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 had the residual functional
capacity to work at the light exertional level but he could only
balance frequently and only climb ramps and stairs, stoop, kneel,
crouch, and crawl occasionally.
ropes, or scaffolds.

He could not climb ladders,

With these restrictions, the ALJ concluded

that Plaintiff could not do his past relevant work, but he could
perform the jobs identified by the vocational expert, including
mail sorter, garment sorter, or marker.

The ALJ further

determined that these jobs existed in significant numbers in the
State and in the national economy.

Consequently, the ALJ decided

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’s residual functional capacity assessment is
not supported by substantial evidence; and (2), alternatively,
the Court should remand the case for consideration of new and
material evidence under 42 U.S.C. §405(g), sentence six.

The

first of these issues will be 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
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)).

It is "'more than a mere

-6-

scintilla.'" Id.
Cir. 1976).

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.

Residual Functional Capacity Finding

Plaintiff’s first claim is that the ALJ erred in his
residual functional capacity finding.

He divides this argument

into two parts: first, that the ALJ’s finding is inconsistent
with the totality of the medical record, and, second, that the
ALJ improperly relied on outdated medical opinions.

The Court

will similarly divide its analysis of the issue.
1.

The Totality of the Record

The Court has summarized the medical records above.
Plaintiff makes a number of claims about why the ALJ did not
properly weigh or construe that evidence.

The Court will begin

by reviewing the ALJ’s articulated basis for his decision.
The ALJ cited to medical reports indicating that in 2013
Plaintiff had a normal gait, steady station, intact sensation,
and normal motor function, and that he reported a tolerable pain
level with medication.

(Tr. 59).

-7-

Moving to 2014, the ALJ said

that examinations also showed no gait abnormality and grossly
normal motor function.

Id.

Commenting on the July, 2014

surgery, the ALJ said that although Plaintiff used a back brace
and cane after surgery, his right leg issues had resolved.

The

ALJ did acknowledge that Plaintiff was then reporting left leg
pain and numbness, but he still said that his pain level with
medication was 3/10.

Id., citing to Exhibits 32F and 33F.

The

ALJ appeared to characterize the October, November, and December
2014 examinations as normal.

(Tr. 59-60).

Based on that review

of the evidence, the ALJ found that Plaintiff had the residual
functional capacity described by the state agency reviewers,
whose opinions were given great weight as being “consistent with
the medical record in its entirety” and as not being altered by
any evidence submitted after those opinions were rendered.

(Tr.

60).
As to other opinions, the ALJ gave some weight to a one-time
examination done for workers’ compensation purposes by Dr.
Lakatos, and less weight to the one done by Dr. Hoover.

He also

gave little weight to the opinions of Dr. Holt that Plaintiff
should avoid moderate activity, noting that they did not rate
Plaintiff’s functional capacity in any specific way and were
inconsistent with the objective medical findings.

He similarly

discounted other opinions by Dr. Holt, some of which were
expressed while Plaintiff was still employed.

Lastly, the ALJ

found that Plaintiff was not entirely credible and that his daily
activities were not inconsistent with the performance of light
work.

(Tr. 62).
In his statement of errors, Plaintiff points to other

evidence in the record which the ALJ did not recite in his
decision, such as several reports from Dr. Henry and others where
Plaintiff said his pain was more severe (6/10 or 7/10), and
objective evidence like a CT scan or discogram showing problems

-8-

in the lumbar spine.

Since these records contained objective

support for Plaintiff’s claim of disabling pain (or at least a
level of pain inconsistent with light work), Plaintiff argues
that the ALJ’s failure to discuss them requires a remand.

He

does not specifically assert any violation of the “treating
physician” rule found in 20 C.F.R. §404.1527(c) (and there is no
clear statement from any of the treating sources that Plaintiff
could not do light work), so the Court will not conduct an
analysis of that particular issue in the context of its review of
this claim of error.
Even under the substantial evidence standard of review,
which gives an ALJ a significant amount of latitude to evaluate
the evidence, and ALJ may not read the record so selectively that
his decision lacks substantial support.

As the courts have said,

“‘cherry picking’ or disregarding favorable statements that, as a
whole, demonstrate [disability] amounts to a distortion of the
record.”

Bradshaw v. Comm’r of Social Security, 2013 WL 3762940,

*10 (E.D. Mich. July 17, 2013).

This Court has not hesitated to

remand cases where the ALJ engaged in a very selective review of
the record and significantly mischaracterized the treatment
notes.

See, e.g., Landenberger v. Comm’r of Social Security,

2012 WL 6114740 (S.D. Ohio Dec. 10, 2012), adopted and affirmed
2013 WL 143374 (S.D.Ohio Jan. 11, 2013), citing, inter alia,
Schultz v. Comm'r of Social Security, 2012 WL 553565, *7 (E.D.
Mich. Jan. 31, 2012),

adopted and affirmed 2012 WL 553944 (E.D.

Mich. Feb. 21, 2012).

On the other hand, as the Court of Appeals

has repeatedly said, “[t]he findings of the Commissioner are not
subject to reversal merely because there exists in the record
substantial evidence to support a different conclusion.”

See

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001).
It is certainly true that the ALJ did not summarize every
medical record which was before him.

Some of them do show

reported symptoms in excess of those he primarily relied on,
-9-

although the ones which Plaintiff relies on in his statement of
errors are primarily his own subjective descriptions of his pain.
Nevertheless, the ALJ’s review of the evidence is largely limited
to the symptoms caused by Plaintiff’s back condition prior to his
July, 2014 surgery.

While he may have been within his discretion

to construe those records as consistent with an ability to do
light work - which includes standing and walking for up to six
hours in a work day - it is not nearly as clear that the ALJ
properly took into account the problems which Plaintiff
experienced with his left leg immediately after his surgery.
As Plaintiff testified, and as the records confirm,
Plaintiff began to describe pain, tingling, and numbness in his
left leg almost immediately after his surgery.

He described it

in September, 2014 as being a 7/10 in intensity, and as being
worse with any activity.

He was still taking Lyrica and

oxycodone even though his right leg symptoms had resolved, and
straight leg raising was now positive on the left side, a finding
not present in the records previously.

He was using a cane at

his doctors’ appointments (something else noted in the records
but not acknowledged by the ALJ).

He also said that within a

month after his surgery the pain had gotten “much worse” (Tr.
408).

Records from Dr. Henry’s office show that the pain was

constant, burning, and aching, and a physical examination done on
December 3, 2014 revealed various positive findings, including
pain at a 7/10 level, aggravated by walking and driving, and a
note that the pain had not been alleviated with conservative
treatment.

See Tr. 426-27.

Other notes show an antalgic gait

favoring the left leg and weakness in the left dorsiflexion and
plantar flexion.

See Tr. 438.

The concern about his left leg

was serious enough for his doctor to recommend surgical
intervention.

The ALJ made no mention of any of this evidence.

In the Court’s view, the omission of any significant
discussion of this evidence requires a remand for further
-10-

proceedings.

“[W]hile it is true that the ALJ must consider all

of the evidence, reversible error does not occur unless it
appears from the record that the ALJ simply failed to take into
account at all some item of evidence which materially bears on
the ultimate resolution of the case.”

McKay v. Comm’r of Social

Security, 2015 WL 6447739, *6 (S.D. Ohio Oct. 26, 2015), adopted
and affirmed Case No. 14-1061 (S.D. Ohio Nov. 17, 2015).
what occurred here.

That is

Consequently, the case should be remanded

for a more complete consideration of whether the evidence about
Plaintiff’s left leg problems - evidence which is clearly
material to his ability to stand or walk for prolonged periods of
time in a work setting - would preclude him from performing the
demands of light work or otherwise restrict him beyond the
residual functional capacity found by the ALJ.
2.

Outdated State Agency Opinions

The second part of this claim relates to the ALJ’s decision
to follow, and give great weight to, the opinions of the state
agency reviewers which were rendered in March and May of 2013.
Little additional discussion on this point is needed.

Neither of

the reviewers had any records relating to the left leg condition
since that problem did not develop until July of 2014.

They

clearly could not have considered whether that condition was
inconsistent with the residual functional capacity to do the
standing and walking required by light work.

The Court’s

discussion of the evidence on that issue shows that the ALJ did
not correctly determine that there was no evidence in the record
post-dating the state agency review which might have impacted
their opinions.

This claim also supports a remand.
B.

Sentence Six Remand

This Court has previously considered the appropriate course
of action to take when a remand is ordered under sentence four of
42 U.S.C. §405(g) but the Plaintiff has also asked for a sentence
six remand based upon new evidence.
-11-

In Fowler v. Comm’r of

Social Security, 2015 WL 5579841, *5 (S.D. Ohio Sept. 21, 2015),
the Court said:
When the Court decides to remand a case under 42 U.S.C.
§ 405(g), sentence four, that determination ordinarily
moots a request for a sentence six remand. As the Court
explained in Bunn v. Comm'r of Social Security, 2014 WL
644718, *9 (M.D. Fla. Feb. 19, 2014), once a sentence
four remand is granted, “[t]he Commissioner should
consider all of the relevant evidence on remand under
sentence four.” This Court has adopted that approach in
other cases. See, e.g., Yeager v. Comm'r of Social
Security, 2010 WL 99062 (S.D. Ohio Jan. 5,
2010)(finding a sentence six remand request moot when a
sentence four remand is granted). So have other courts.
See, e.g., Falcone v. Comm'r of Social Security, 2009
WL 3241879 (N.D. W.Va. Sept. 30, 2009). The Court will
adopt that course of action here.
The Court sees no reason to treat this case differently,
especially because the new evidence which Plaintiff cites in
support of his request for a sentence six remand deals with the
continued treatment of his left leg symptoms.

Since the ALJ will

be reviewing the record concerning that impairment, he should
additionally consider both the records which Plaintiff submitted
to the Appeals Council and any other pertinent records in making
his decision about whether Plaintiff still retains the residual
functional capacity to perform the exertional demands of light
work activity.
VII.

Recommended Decision

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.

It is further

recommended that Plaintiff’s alternative request for a sentence
six remand be found to be moot.
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
-12-

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

-13-