Collins v. Commissioner of the Social Security Administration

Filing 22

OPINION and ORDER - the Court OVERRULES Plaintiff's Statement of Errors and AFFIRMS the Commissioner's decision. Signed by Magistrate Judge Elizabeth Preston Deavers on 9/28/2017. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHELLE COLLINS,
Plaintiff,
Civil Action 2:16-cv-517
Magistrate Judge Elizabeth P. Deavers

vs.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

OPINION AND ORDER
Plaintiff, Michelle Collins, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3)
for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying
her applications for social security disability insurance benefits and supplemental security
income. This matter is before the Chief United States Magistrate Judge for disposition based
upon the parties’ full consent (ECF No. 10), and for consideration on Plaintiff’s Statement of
Errors (“SOE”) (ECF No. 18), the Commissioner’s Memorandum in Opposition (ECF No. 21),
and the administrative record (ECF No. 11). For the reasons that follow, the Court
OVERRULES Plaintiff’s Statement of Errors and AFFIRMS the Commissioner’s decision.
I.

BACKGROUND

In November 2010, Plaintiff filed applications for both supplemental security income and
disability insurance benefits. (R. at 322-34.) Plaintiff maintains that she became disabled on
July 7, 2010, as a result of bipolar disorder, manic depression, arthritis in her neck, back and

1

shoulders, degenerative disc disorder in her neck, fibromyalgia, and diverticulitis. (R. at 359,
364.)
After various administrative proceedings, Administrative Law Judge (“ALJ”) Vincent
Misenti, denied Plaintiff’s applications on January 3, 2013, based on his conclusion that
Plaintiff’s impairments do not constitute a “disability” within the meaning of the Social Security
Act. (R. at 170-80.) On March 1, 2013, Plaintiff filed a Request for Review of Hearing
Decision Order. (R. at 265.) On July 19, 2016, the Appeals Council granted review and
remanded the case to the ALJ. (R. at 187-88.)
On August 28, 2014, ALJ John M. Prince held a supplemental hearing. (R. at 32-62.)
Plaintiff appeared and testified at the supplemental hearing, represented by counsel. (R. at 3656.) A vocational expert also appeared and testified at the hearing. (R. at 57-61.) On September
8, 2014, ALJ Prince issued a decision finding that Plaintiff was not disabled within the meaning
of the Social Security Act. (R. at 11-24.) On October 2, 2014, Plaintiff filed a Request for
Review of Hearing Decision Order. (R. at 316-21.) On April 11, 2016, the Appeals Council
denied Plaintiff's request for review and adopted the ALJ’s decision as the Commissioner’s final
decision. (R. at 1-7.) Plaintiff then timely commenced the instant action.

2

II. HEARING TESTIMONY1
A.

Plaintiff’s Testimony
Plaintiff testified at the administrative hearing that she volunteers through the Job and

Family Services department for her food stamp benefits. (R. at 37.) She performs 36 hours per
month which she tries to accomplish in a week’s time. (R. at 38.)
Plaintiff estimated that she can walk only 50 feet without her crutches, and stand for only
5 minutes at a time. (R. at 38.) She also testified that she could not walk further than a block
even with her crutches. (Id.) After standing for 5 minutes she would then need to sit for 15-20
minutes to recover. (R. at 45.) She reported knee instability with walking. (R. at 42.)
Plaintiff began having avascular necrosis symptoms in 2010. (R. at 40.) Since that time
her symptoms have gotten worse. (Id.) Her doctors have informed her that unless she breaks her
leg, they cannot do anything. (R. at 41.) She has a lot of pain in her left knee and there is also
some tingling and numbness. (Id.) Her leg falls asleep occasionally. (Id.) She reports
instability when she walks. (R. at 42.) She stumbles from time to time, but she does not report
any falls. (Id.) She has to sit down after five minutes of work when she does the dishes or cooks
supper. (R. at 45.) She has to sit down for fifteen or twenty minutes before she is able to stand
again. (Id.) She can sit for an hour or two before she has to change positions. (R. at 46.)
Plaintiff does not believe she can perform a job that requires her to sit the majority of an
eight hour day because she would find it distracting. (R. at 49.) When she was volunteering for
RSVP, she said there was “a lot of drama,” and it was hectic. (R. at 50.)
1

Although the record contains a history of treatment for numerous issues, Plaintiff’s arguments
on appeal relate only to her physical condition. (See ECF. No. 18.) Accordingly, the Court limits
its discussion to plaintiff’s claimed physical impairments.
3

On a typical day, she makes sure her 16-year-old son is getting ready for school, and then
she goes back to bed until noon. (R. at 50.) She is able to wash dishes, but claims she spends
most of the day with her legs elevated. (R. at 50-51.)
Plaintiff further testified that she always takes her medications as prescribed. (R. at 53.)
She only attended two physical therapy sessions because the therapy “didn’t seem to help.” (Id.)
When asked about a March 2012 drug screen, in which Dr. Losch refused to prescribe
medication, Plaintiff responded, “I didn’t know what that was all about, but there was something
in my records, evidently, because every time I go somewhere to get medication they refuse me.”
(R. at 54.)
B.

Vocational Expert Testimony
Prior to the vocational expert (“VE”) testifying at the administrative hearing, Plaintiff’s

counsel and the ALJ agreed that Plaintiff’s past jobs include bartender, short order cook/deli
clerk and security officer/first aid attendant, all at the light exertion, semiskilled level. (R. at 3940.)
The ALJ proposed a series of hypotheticals regarding Plaintiff’s residual functional
capacity (“RFC”) to the VE. (R. at 58-60.) Based on Plaintiff’s age, education, and work
experience and the RFC ultimately determined by the ALJ, the VE testified that Plaintiff could
not perform her past relevant work because none of her jobs were sedentary. (R. at 57.) She
could, however, perform approximately 204,000 unskilled, sedentary exertional jobs in the
national economy such as an assembler, inspector, and hand bander. (R. at 59.)

4

The VE also testified that if the hypothetical individual had an additional limitation of
lifting only five pounds, she would be able to perform some assembly jobs such as an atomizer
assembler. (R. at 60.)
III.
A.

MEDICAL RECORDS

Holzer Clinic
The first treatment note from Ann Losch, D.O., is dated February 12, 2010, for “many,

many, many, many, many complaints.” Plaintiff reported being in a motor vehicle accident on
December 3, 2009. She was a restrained driver. She says she was driving about 20 miles per
hour and ran right straight into a ditch. She was thrown forward against the seat belt, her knees
rammed into the dashboard, and now has pain in her neck and both knees. Plaintiff did not go to
the emergency room, but she reports the knee pain keeps her awake at night. (R. at 476.) On
examination, Dr. Losch found no cyanosis, clubbing, or edema on Plaintiff’s extremities. She
found tenderness and spasm on posterior cervical muscles along her trapezius muscles
bilaterally, some bruising over both knees without but no swelling, and full range of motion in
both knees. (Id.) Dr. Losch’s assessment included knee joint pain, and she prescribed pain
medicine and ordered x-rays. (Id.)
An x-ray taken of Plaintiff’s left knee on November 11, 2010, showed no bony
abnormality, no joint space narrowing, and no abnormal calcification. (R. at 522.) Plaintiff was
seen by Dr. Losch the same day, and Plaintiff reported that her patella had popped out of place
several days prior. On exam, the knee did not appear to be out of place, but Dr. Losch found
clicking with flexion and extension. She assessed Plaintiff with knee joint pain and arthritis. (R.
at 525-26.)
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On November 30, 2010, Plaintiff was seen for a physical therapy evaluation due to
diagnoses of lumbar strain, cervical strain and knee strain. (R. at 545.) Plaintiff complained of
lower back pain, neck pain, bilateral shoulder pain, bilateral knee pain with a gradual onset now
affecting her mobility. (R. at 548.) Plaintiff reported that she cannot stand or walk more than 30
minutes. (Id.) On examination, Plaintiff’s gross and fine motor skills were intact along with
proprioception and light touch. (Id.) Her range of motion was within functional limits and
manual muscle testing was 4/5 throughout with ositive laxity left patella. (R. at 549.) Plaintiff
only attended this initial evaluation for physical therapy, and the record shows she cancelled or
failed to appear on other occasions. (R. at 546-47.)
Plaintiff underwent an MRI of her left knee on January 17, 2011 which revealed bone
infarct in the distal femur and proximal tibia and very small joint effusion. (R. at 637.)
When seen on February 8, 2011, Plaintiff complained of anxiety, depression, joint pain,
chest congestion, chest tightness, and productive cough. (R. at 636.) She was assessed with
knee joint pain, hyperlipidemia, aseptic necrosis of the medial femoral condyle, and aseptic
necrosis of the lateral femoral condyle. Dr. Losch referred Plaintiff to the Holzer orthopedic
department and ordered a bone scan. (R. at 638.)
On February 9, 2011, Plaintiff saw Neesha Smith, C.N.P. Plaintiff complained of pain
and difficulty with climbing stairs, squatting, and getting up from a seated position. On
examination, Ms. Smith found moderate medial joint line tenderness and mild lateral joint line
tenderness. (R. at 641.) She applied a knee immobilizer and assessed aseptic necrosis of the
medial femoral condyle and aseptic necrosis of the tibial plateau. (R. at 642.)

6

Plaintiff underwent a bone scan on February 16, 2011, which revealed abnormal activity
in the proximal left tibia, which was suspect for neoplastic process. (R. at 634-35.)
Plaintiff saw Wayne Amendt, M.D., on February 24, 2011, for recheck of her knee
immobilizer and to discuss the bone scan. (R. at 647.) In reviewing the MRI, Dr. Amendt found
“knee joint looks normal; just a little bit what appears to be diffuse hemorrhage in the anterior
proximal lib; the report states she has inchondroma bone infart distal femur but I don’t believe
this is what it is.” (R. at 648.) On examination, Dr. Amendt found moderate medial joint line
tenderness and moderate lateral joint line tenderness. (R. at 649.) He ordered labs, and Plaintiff
returned the following day, at which time Dr. Amendt injected her knee with Lidocaine. (R. at
651-53.) He assessed joint pain, limb pain, and neoplasm of the bone. (R. at 654.)
Plaintiff consulted with hematologist, Sushil Jain, M.D., on April 11, 2011, to see “if she
has any systemic illness to explain the bone infarct.” (R. at 667.) On examination, Dr. Jain
found tenderness in the left knee, right anxillary lymph nodal enlargement and tenderness,
abdominal tenderness, and enlargement of the spleen. (R. at 669.) Dr. Jain assessed
lymphadenopathy, aseptic necrosis of the medial femoral condyle, aseptic necrosis of the lateral
femoral condyle, and aseptic necrosis of the tibial plateau. (R. at 670-71.) Following lab work,
Plaintiff followed-up with Dr. Jain on May 2, 2011. Dr. Jain assessed aseptic necrosis of the
medial femoral condyle, aseptic necrosis of the tibial plateau, distal femur and proximal tibia
bone infarct of the left knee, smoker, abdominal tenderness, and splenic enlargement. Dr. Jain
recommended that plaintiff continue follow-up with Dr. Chang and Dr. Losch. (R. at 674-76.)
When presenting to Dr. Losch on May 4, 2011, Plaintiff reported that she is confused
because she feels like she is getting conflicting reports from all the doctors she is seeing
7

regarding the bone infarct diagnosis. (R. at 679.) Dr. Losch concluded, “As for the infarct of the
bone, we will go ahead and get her setup with an orthopedist in Columbus for second opinion,
evaluation, and suggestions of the treatment.” (R. at 681.)
On June 8, 2011, Plaintiff saw Dr. Losch for continuing pain in her leg. Plaintiff reported
that it felt like it was going to break and gave way so badly that she almost fell. (R. at 686.) An
x-ray taken of Plaintiff’s left femur on June 23, 2011 showed no fracture or destructive lesion
and normal articulation at the hip and knee. (R. at 683.) In August 2011, Dr. Losch prescribed
crutches. (R. at 689.)
Plaintiff was evaluated by Glen Imlay, M.D., a pain management and rehabilitation
specialist, on September 6, 2011, due to numbness and tingling in her left lower extremities. (R.
at 691-92.) The EMG was negative for radiculopathy or other neurological process. (R. at 69396.) Dr. Imlay assessed limb pain, tingling, and lumbago. (R. at 698.)
Plaintiff continued to treat with Dr. Losch through the date of the hearing. (R. at 739.)
Dr. Losch assessed her with xanthelasma of the eyelid, eczema, and aseptic necrosis of the
lateral femoral condyle. (R. at 734, 741, 768, 790, 795, 802.)
On February 17, 2012, Dr. Losch reported that Plaintiff suffers from aseptic necrosis of
the femur; and, therefore, unable to work for 6 months, through August 31, 2012. (R. at 705.)
Plaintiff underwent a bone scan on October 8, 2012, which revealed degenerative changes
involving both knees without evidence of occult fracture or osteomyelitis. (R. at 770.)
In May 2014, Plaintiff requested a new referral to pain management. (R. at 844.) She
denied any radicular pain or weakness in her extremities. (R. at 846.) On examination, Plaintiff

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exhibited 5/5 strength, a full range of motion in the neck, tenderness along the cervical muscles,
and glenohumeral joints, but no weakness in the shoulders. (Id.) Plaintiff also requested
MRIs, but Dr. Losch found no indication of the need for anything more than x-rays. (R. at 847.)
Cervical x-rays showed stable multilevel degenerative changes, lumbar studies showed mild
multilevel degenerative changes, shoulder films revealed mild AC joint arthrosis, and thoracic
studies were normal. (R. at 833-37.) A follow-up MRI of Plaintiff’s cervical spine taken in June
2014 confirmed C3-4 and CS-6 disc herniations with straightening of the normal cervical
lordosis, a herniation at T9-10, and a bulging disc at L4-5. (R. at 825-26.).
In July 2014, Dr. Losch offered a note limiting Plaintiff to lifting 5 pounds and no
standing and/or walking for more than 10 minutes at a time. (R. at 832.)
B.

Felix Cheung, M.D.
Plaintiff consulted with Dr. Cheung, an orthopedic oncology specialist on referral from

Dr. Amendt due to concerns about malignancy for this left knee only on March 3, 2011. Plaintiff
complained of whole-body pain, but specifically left knee pain, for the past two months. She
stated she fell on it and developed a bone infarction. She described her pain as sharp, numb,
tingling, and rated her pain severity at a level of 10 on a 0-10 visual analog scale. According to
Plaintiff, it is worse during the day but wakes her up at night. Weight-bearing makes things
worse. She reports trying ice and heat, physical therapy, changing behavior, as well as a steroid
injection, which only worked for about a week. She continues to smoke about a pack of
cigarettes per day and has ever since age 15. She has a family history of breast and lung cancer
and a personal history of cervical cancer. (R. at 579-80.)

9

Plaintiff underwent an MRI of her left tibia and fibula on March 30, 2011, which
revealed a grade two contusion and an area of bone marrow edema with enhancement and a
pattern suggesting a stress fracture. (R. at 596-97.)
Plaintiff returned to Dr. Cheung on April 4, 2011, and he opined that Plaintiff had
“benign things” going on with her left leg, a bony infract in the femur, and a stress fracture in her
left tibia. He referred her to a hematologist for evaluation of any blood dyscrasias. (R. at 577.)
C.

The Ohio State University Medical Center
Plaintiff was evaluated by orthopaedist, Thomas Scharschmidt, M.D. on July 11, 2011,

for a second opinion as to her left leg bone infarct. (R. at 598-602.) Examination of her knee
showed no joint effusion. She had diffuse tenderness about the soft tissues and bone of the distal
femur and proximal tibia. (R. at 599.) Dr. Scharschmidt diagnosed leg edema, bone infarction,
left leg pain, and avascular necrosis of the bone and ordered an MRI. (R. at 600-02.) The MRI
of the left femur and tibia taken on July 19, 2011 showed multiple lesions within the femurs
bilaterally and multiple lesions within the tibia bilaterally. (R. at 603-04.) An MRI of the
lumbar spine taken on August 10, 2011, showed the spine showed degenerative changes at L4-5
and L5-Sl, without evidence of neurological compromise. (R. at 621-22.)
Plaintiff saw Jonathan Blau, M.D., on August 12, 2011. (R. at 625.) Dr. Blau found
tenderness to palpation in the leg proximal and distal to the knee and on compression of the
patellafemoral joint; medial and lateral joint line tenderness; palpation of the greater sciatic notch
that created burning and shooting sensation down the leg; decreased sensation along the
saphenous, superficial, and deep peroneal nerve distributions; mild foot drop when walking on
heels; difficulty walking on toes; and, numbness down the arm. (R. at 626.) Dr. Blau concluded
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that, given her left lower extremity numbness and burning and a lumbosacral MRI negative for
nerve root compression, the most likely diagnosis is radiculopathy. (Id.) He ordered Plaintiff to
neurology.
D.

Robert Masone, M.D.
On November 30, 2011, Plaintiff saw Robert Masone, M.D., with chief complaints of

cervical pain, thoracic pain, lumbar strain, left lower extremity pain, and numbness in her left
lower extremity including all of her toes. (R. at 712.) The physical examination revealed
antalgic gait, Lasegue’s test negative bilaterally, mild trouble transitioning from sitting to
standing (causing pain), hyperextension which caused pain, tenderness over the lumbar region,
and no weigh bearing on the left lower extremity. (R. at 713.) The impression was lumbar
spondylosis and sacroiliitis. (Id.)
E.

State Agency Evaluation
On November 15, 2011, state agency physician, Paul Morton, M.D., reviewed the record

and assessed Plaintiff's physical functioning capacity. (R. at 133-142.) Dr. Morton opined that
Plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently; stand
and/or walk about six hours in a workday; and sit for about six hours in a workday. (R. at 141.)
Dr. Morton also found that Plaintiff had postural limitations to frequently kneel, crouch, or
crawl; and, to never climb ladders, ropes, or scaffolds. (Id.) According to Dr. Morton, Plaintiff
should avoid all exposure to unprotected heights. (R. at 142.)
IV. THE ADMINISTRATIVE DECISION
On September 8, 2014, the ALJ issued his decision. (R. at 11-24.) Plaintiff met the
insured status requirements through December 31, 2015. At step one of the sequential evaluation
11

process,2 the ALJ found that Plaintiff had not engaged in substantially gainful activity since July
7, 2010, the alleged onset date. (R. at 13.) The ALJ found that Plaintiff had the severe physical
impairments of avascular necrosis of the left leg, multiple joint arthritis, degenerative disc
disease of the cervical, thoracic, and lumbar spine, mild AC joint arthritis bilaterally,
degenerative joint disease of the bilateral knees. (R. at 14.) The ALJ determined that Plaintiff’s
alcohol dependence in complete remission, history of tobacco abuse, and diverticulosis were
non-severe impairments. He further found that Plaintiff’s fibromyalgia is a nonmedically
determinable impairment. (R. at 14.)
At step three, the ALJ found that none of Plaintiff’s treating or examining physicians
indicated impairments as severe as the criteria for any listed impairment. (R. at 15.) The ALJ
indicated that he, nevertheless, considered Listing 1.02 (Dysfunction of a joint) and 1.04
(Disorder of the spine). (Id.) According to the ALJ the record failed to document any criteria
required by the listings. (Id.) “Specifically, the record fails to document any compromise of a
2

Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. §416.920(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. §416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
12

nerve root, or any gait abnormality of the severity described in section 1.00B.2b.” (Id.) The ALJ
noted that, although Plaintiff’s “avascular necrosis causes pain in ambulation, this relates to the
leg itself is not a joint [sic].” (Id.) The ALJ further noted that one of Plaintiff’s recent
examinations “revealed a good gait with no notable deficit or cadence abnormality.” (Id.) He,
therefore, found that 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 14-15.)
At step four of the sequential process, the ALJ set forth Plaintiff’s RFC as follows:
After careful consideration of the entire record, the [ALJ] finds that the
claimant has the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a) and 416.967(a) except that she is further limited
to occasionally balancing, stooping, kneeling, crouching, crawling, working in or
near moving mechanical parts, operating motor vehicles, or climbing ramps and
stairs; never climbing ladders, ropes, or scaffolds; no more than frequent overhead
lifting or carrying with the bilateral upper extremities; never working around
unprotected heights; walking up to 50 feet without an ambulatory device; never
standing or walking walk for more than 10 minutes at time; requiring 1 to 2
minute breaks every 60 minutes when she is permitted to stand/walk around work
station; working only in a static work setting not involving stringent time or
production requirements; never socially interacting with the general public, no
teamwork or tandem work, and no transactional, negotiational or supervisory
tasks; and only occasional, superficial interaction with coworkers.
(R. at 16-17.) In reaching this determination, the ALJ noted that the medical evidence of record
does not support the claimant’s allegations of debilitating musculoskeletal symptomatology to
the degree alleged. (R. at 18.) The ALJ assigned “some weight” to Dr. Morton’s opinion, giving
Plaintiff the benefit of the doubt, and considering the combined effect of her spinal, lower
extremity, and shoulder impairments, he found Plaintiff is further limited to a range of
sedentary work. (R. at 21.) The ALJ addressed Dr. Losch’s treatment notes keeping Plaintiff off
work but assigned them “little” weight, noting they did not contain function-by-function
13

assessments and provide no reason for why Plaintiff could not work. (Id.)
Relying on the VE’s testimony, the ALJ concluded that Plaintiff can perform jobs that
exist in significant numbers in the national economy. (R. at 23-24.) He therefore concluded that
Plaintiff was not disabled under the Social Security Act. (R. at 24.)
VII. 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
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 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 & Human 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.

14

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)).
VIII. ANALYSIS
Plaintiff argues that the ALJ committed reversible error in failing to find her disabled
under Social Security Listing 1.02, which provides in pertinent part:
1.02 Major dysfunction of a joint(s) (due to any cause): Characterized by
grossanatomical 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 affected joint(s), and findings on
appropriate medically acceptable imaging of joint space narrowing, bony
destruction, or ankylosis of the affected joints(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 . . . .
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02 (emphasis added). An inability to ambulate effectively
means an “extreme limitation of the ability to walk.” 20 C.F.R. pt. 404, subpt. P, app. 1, §
1.00B2b(1). Ineffective ambulation is generally defined “as having insufficient lower extremity
functioning . . . to permit independent ambulation without the use of a hand-held assistive
device(s) that limits the function of both upper extremities.” Id. A person ambulates effectively if
they are “capable of sustaining a reasonable walking pace over a sufficient distance to be able to
carry out activities of daily living . . . [and can] travel without companion assistance to and from
15

a place of employment.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2b(2). A claimant’s
impairment must meet every required 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). Ultimately, the Plaintiff bears the burden of establishing that she is disabled under
Listing 1.02. See Rabbers v. Comm’r of Soc. Sec. Admin., 582 F.3d 647, 653 (6th Cir. 2009).
In the instant case, Plaintiff argues that the ALJ was wrong to find her avascular necrosis
affects her leg rather than her knee joint. (ECF No. 18 at 9.) According to Plaintiff, the record
indicates that her avascular necrosis affects the distal end of the left femur and the proximal end
of the tibia, which comprise part of the knee joint. (Id. at 10.) Plaintiff also argues that the ALJ
was wrong to conclude that the record does not demonstrate ineffective ambulation, and points to
several instances in the record that document ambulatory problems. (Id. at 10-12.) According to
Plaintiff, the ALJ’s discussion of the record is fatally superficial and incomplete. (Id. at 12-13.
Plaintiff concludes, therefore, that the ALJ’s step three finding is not supported by substantial
evidence in the record. (Id. at 9.)
The Court concludes that substantial evidence supports the ALJ’s step-three analysis and,
specifically, his finding that Plaintiff’s avascular necrosis did not meet or equal the requirements
of Listing 1.02. First, as the ALJ noted, no treating or examining physician had ever indicated
that Plaintiff had an impairment that met any of the Listings. (R. at 15.) Nevertheless, after his
own analysis of the requirements, the ALJ determined that the record fails to document any of
the criteria required under Listings 1.02 or 1.04. Substantial evidence supports this finding. For
example, the record fails to document any compromise of a nerve root or severe gait abnormality
16

or evidence that a major weight-bearing joint, as opposed to her leg, caused an inability to
ambulate effectively.
Even if the ALJ had erred in finding that Plaintiff’s avascular necrosis did not involve a
joint for purposes of the Listings – a finding the Court expressly does not make – substantial
evidence supports his conclusion that the impairment did not impact Plaintiff’s ability to
ambulate effectively.
As noted above, the regulations define ineffective ambulation “as having insufficient
lower extremity functioning . . . to permit independent ambulation without the use of a hand-held
assistive device(s) that limits the function of both upper extremities.” 20 C.F.R. pt. 404, subpt.
P, app. 1, § 1.00B2b(1). As Defendant notes, the record documents three instances when
Plaintiff was observed using hand-held assistive devices. (ECF No. 21 at 11-12.) As Plaintiff
argues, she was prescribed crutches in August 2011. (R. at 18, 689-690.) The record documents
her use of two canes or crutches, however, only twice, in September and November 2011. (R. at
713, 729.) On a third occasion, the record documents Plaintiff “walking with a crutch” in
February 2012. (R. at 731 (emphasis added).) Furthermore, as the ALJ noted, on June 2, 2014,
Plaintiff’s clinical examination “revealed a good gait with no notable deficit or cadence
abnormality.” (R. at 15, 853.) The Court is mindful that, at step three, Plaintiff bears the burden
of demonstrating that she meets all of the required listing criteria. Rabbers, 582 F.3d at 653.
The record contains only two references, both dating three years before Plaintiff’s hearing date,
suggesting ineffective ambulation. Where, as here, recent medical exams show the opposite,
namely that Plaintiff displays a “good” gate and no other indications of ineffective ambulation, it
cannot be said that Plaintiff has carried her burden of proving that she meets the Listing 1.02
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criteria. (R. at 583.) The Court finds, therefore, that substantial evidence of record supports the
ALJ’s conclusion that Plaintiff does not suffer from an inability to ambulate effectively as
required by Listing 1.02. Duncan, 801 F.2d at 855.
Finally, as to the ALJ’s treatment of the record at a whole in his step three analysis, the
Court notes that the U.S. Court of Appeals for the Sixth Circuit has declined to require more than
“minimal reasoning at step three.” Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 365 (6th
Cir. 2014). Furthermore, at step three, the regulations require only that the ALJ consider “the
medical severity of your impairment(s),” rather than the stricter “good reasons” requirement that
governs evaluation of treating source opinions. Id.; see § 404.1520(a)(4)(iii). The ALJ directly
addresses the severity issue by considering evidence of gait abnormality, nerve root compromise,
and the reports of treating and examining physicians. (R. at 15.) Additionally, at step four, the
ALJ discussed the medical records and testimony that support his severity analysis. (R. at 1719.) The Court finds, therefore, that the ALJ properly considered the severity of Plaintiff’s
impairment at step three. Forrest, 591 F. App’x at 365.
IX. CONCLUSION
In sum, for the reasons stated above, the Court concludes that substantial evidence
supports the ALJ’s decision denying benefits. Accordingly, the Court OVERRULES Plaintiff’s
Statement of Errors and AFFIRMS the Commissioner’s decision. The Clerk is DIRECTED to
enter judgment in favor of Defendant.

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IT IS SO ORDERED.

Date: September 28, 2017

/s/ Elizabeth A. Preston Deavers
ELIZABETH PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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