Spencer v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS reversing the Commissioner's nondisability finding and remanding this case. Objections to R&R due by 11/14/2017. Signed by Magistrate Judge Kimberly A. Jolson on 10/31/2017. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DALE L. SPENCER,
Plaintiff,
v.

Civil Action 2:17-cv-218
Judge James L. Graham
Magistrate Judge Jolson

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Dale L. Spencer, 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 (“DIB”), a period of disability, and Supplemental Security
Income (“SSI”). For the reasons that follow, it is RECOMMENDED that the Court REVERSE
the Commissioner’s nondisability finding and REMAND this case to the Commissioner and
Administrative Law Judge (“ALJ”) under Sentence Four of § 405(g).
I.

BACKGROUND
A. Procedural Background
Plaintiff applied for DIB, a period of disability, and SSI on December 26, 2012, alleging

disability beginning August 13, 2012, due to numerous physical and mental impairments. (Tr.
129–35).

An Administrative Law Judge (the “ALJ”) held a hearing (Tr. 598–631) after

Plaintiff’s application was denied initially (Tr. 84–86) and upon reconsideration (Tr. 92–93).
On March 7, 2016, the ALJ denied benefits in a written decision. (Tr. 15–23). That decision
became final when the Appeals Council denied review on January 19, 2017. (Tr. 7–9).

Plaintiff filed this case on March 15, 2017 (Doc. 1), and the Commissioner filed the
administrative record manually on May 23, 2017 (Doc. 11). Plaintiff filed a Statement of
Specific Errors on July 7, 2017 (Doc. 12), the Commissioner responded on August 14, 2017
(Doc. 13), and Plaintiff replied on August 28, 2017 (Doc. 14).
B. Relevant Medical Records
The medical records relevant to Plaintiff’s right foot problem show he had a diagnosis of
hallux rigidus, associated pain, and an antalgic gait. (See, e.g., Tr. 304–305, 485, 486, 503, 539,
568–69, 586). They likewise reflect that Plaintiff suffers a decreased range of motion due to his
arthritic joint. (Id.). In 2015, Plaintiff underwent cheilectomy to address his hallux rigidus. (Tr.
462, 547). Plaintiff described “sitting around a lot” following the surgery because of the pain
caused by putting weight on his right foot. (Tr. 509).
After considering only Plaintiff’s spine disorders and not his right foot disorder of hallux
rigidus, state agency consultant Gary Hinzman, M.D. opined on January 30, 2015, that Plaintiff
could perform light work with limitations. (Tr. 58–66). State agency consultant Frank Stroebel,
M.D. concurred with Dr. Hinzman’s opinion on May 7, 2013, but also considered only Plaintiff’s
spine disorders and not his right foot disorder of hallux rigidus. (Tr. 68–76).
C. Relevant Hearing Testimony
Plaintiff’s counsel indicated that Plaintiff’s “two major issues” are “low back problems”
and “a problem with his right foot.” (Tr. 600–601). Plaintiff indicated that the surgery on his
right foot eased the pain but did not restore his mobility. (Tr. 626–27). Plaintiff testified that,
on a normal day, he spends at most two to three hours on his feet, standing or walking. (Tr.
617). Plaintiff’s activity includes doing housework, getting dressed, and grooming himself “in
intervals” (Tr. 617, 621), watching football, and playing cards. (Tr. 618). He is able to do some

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grocery shopping and, with difficulty, can lift a gallon of milk or a ten-pound bag of potatoes.
(Tr. 624). Plaintiff can drive a car for a short period of time. (Tr. 625).
The Vocational Expert testified, inter alia, that an individual of Plaintiff’s age, education,
work experience limited to standing and walking a maximum of three hours in an eight-hour
workday, lifting a maximum of ten pounds occasionally and five pounds frequently would be
limited to sedentary work. (Tr. 629).
D. The ALJ’s Decision
The ALJ found that Plaintiff meets the insured status requirements of the Social Security
Act through December 31, 2017, and has not engaged in substantial gainful activity since August
13, 2012, the alleged onset date.

(Tr. 17).

The ALJ determined that Plaintiff’s severe

impairments consisted of back disorders and “a right foot disorder of acquired hallux rigidus,”
neither of which alone or in combination met or medically equaled the severity of a listed
impairment. (Tr. 18).

In terms of residual functional capacity (“RFC”), the ALJ found that

Plaintiff is able “to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b)
meaning the claimant can lift, carry, push, and/or pull 20 pounds occasionally and 10 pounds
frequently; stand, walk, and/or sit for 6 hours in an 8-hour workday; never climb ladders, ropes,
or scaffolds; occasionally crouch, kneel, or crawl; and no exposure to moving machinery or
unprotected heights.” (Id.).
Specific to Plaintiff’s right foot disorder, the ALJ found:
[Plaintiff] testified at the hearing that he has had right foot pain since the
Summer of 2010, and that the pain had been constant prior to his surgery in 2015
(Hearing Testimony). However, the record fully supports he has had right foot
pain since 2015. Nevertheless, he has rated this pain as being 5-8 out of a
possible 10, and reported that the pain interferes with his daily activities (Exhibits
12F and 15F). The record shows he was unable to perform toe ambulation during
a physical examination on August 22, 2015 because of right foot pain. However,
he could still perform heel ambulation (Exhibit 12F). Because the x-rays of the
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right foot taken on September 18, 2015 showed moderate osteoarthritis at the first
MTP joint, but no acute osseous abnormality in the right foot, he was diagnosed
with acquired hallux rigidus (Exhibit 15F). Thus, he underwent a cheilectomy of
the first MTP joint on the right foot (Exhibit 15F). At the hearing in 2016, he
admitted during his hearing testimony that while he still does not have the
mobility in that foot, that [sic] most of the pain is gone (Hearing Testimony).
(Tr. 20–21).

The ALJ stated generally that, although Plaintiff’s medically determinable

impairments could reasonably be expected to cause the alleged symptoms, his statements
concerning the intensity, persistence, and limiting effects of those symptoms were not entirely
credible. (Tr. 21). The ALJ then assigned “more weight” to Dr. Hinzman and Dr. Stroebel and
incorporated their limitations into the RFC, without acknowledging that they failed to consider
Plaintiff’s right foot impairment. (Id.).
The ALJ found that Plaintiff is unable to perform past relevant work and was 50 years old
(an individual closely approaching advanced age) on the onset date. (Id.). Transferability of job
skills was not material to the disability determination. (Tr. 22). Considering Plaintiff’s age,
education, work experience, and RFC, the ALJ determined that “there are jobs that exist in
significant numbers in the national economy that the claimant can perform.” (Id.). Based on the
foregoing, the ALJ found that Plaintiff was not disabled under the Social Security Act. (Tr. 23).
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), “[t]he findings of the [Commissioner] as to any fact, if

supported by substantial evidence, shall be conclusive. . . .” “[S]ubstantial 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 v. Comm’r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th
Cir. 1994)). The Commissioner’s findings of fact must also be based upon the record as a whole.
Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To that end, the Court must “take into
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account whatever in the record fairly detracts from [the] weight” of the Commissioner’s
decision. Rhodes v. Comm’r of Soc. Sec., No. 2:13-cv-1147, 2015 WL 4881574, at *2 (S.D.
Ohio Aug. 17, 2015).
III.

DISCUSSION
The issue for review in this case is narrow. Plaintiff raises one statement of error based

on the alleged “internal inconsistency of the ALJ’s decision.” (Doc. 14 at 2). The Court agrees
with Plaintiff that the ALJ’s decision is not supported by substantial evidence.
The ALJ determined that Plaintiff suffers from back disorders and “a right foot disorder
of acquired hallux rigidus.” (Tr.18). The ALJ found that Plaintiff has the RFC to perform light
work as defined in 20 C.F.R. 404.1567(b) and 416.967(b), meaning that Plaintiff can lift, push,
and/or pull 20 pounds occasionally and 10 pounds frequently; stand, walk, or sit for 6 hours in an
8-hour workday; never climb ladders, ropes, or scaffolds; and occasionally crouch, kneel, or
crawl. (Id.). The ALJ also indicated that Plaintiff must be prevented from exposure to moving
machinery or unprotected heights. (Id.).
The ALJ’s discussion of Plaintiff’s foot disorder in formulating the RFC is difficult to
follow. That discussion is as follows:
In regards to the claimant’s foot problems, he testified at the hearing that
he has had right foot pain since the Summer of 2010, and that the pain had been
constant prior to his surgery in 2015 (Hearing Testimony). However, the record
fully supports he has had right foot pain since 2015. Nevertheless, he has rated
this pain as being 5-8 out of a possible 10, and reported that the pain interferes
with his daily activities (Exhibits 12F and 15F). The record shows he was unable
to perform toe ambulation during a physical examination on August 22, 2015
because of right foot pain. However, he could still perform heel ambulation
(Exhibit 12F). Because the x-rays of the right foot taken on September 18, 2015
showed moderate osteoarthritis at the first MTP joint, but no acute osseous
abnormality in the right foot, he was diagnosed with acquired hallux rigidus
(Exhibit 15F). Thus, he underwent a cheilectomy of the first MTP joint on the
right foot (Exhibit 15F). At the hearing in 2016, he admitted during his hearing
testimony that while he still does not have the mobility in that foot, that [sic] most
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of the pain is gone (Hearing Testimony).
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence, and limiting effects of these symptoms are not entirely
credible for the reasons explained in this decision.
As for the opinion evidence, at the initial level, State Agency medical
consultant, Gary Hinzman, M.D., opined that the claimant has the residual
functional capacity to perform light work with postural and environmental
limitations (1/30/2013, Exhibit 2A). At the reconsideration level, another state
agency medical consultant, Frank Stroebel, M.D., affirmed Dr. Hinzman’s
opinion (5/7/2013, Exhibit 4A). The undersigned assigns more weight to these
opinions. They have specialized knowledge in evaluating physical impairments
and the listings under the SSA standards for disability. Also, their opinions are
consistent with the record as a whole and are not contradicted by any treating
source. For these reasons, the undersigned has incorporated these limitations into
the assessment of the claimant’s residual functional capacity.
(Tr. 20–21).
Plaintiff criticizes the ALJ’s “deployment of unexpected conjunctions” and the
“ominous-seeming modifiers,” but notes that the ALJ did not dispute his testimony concerning
the intensity of his pain and its impact on his daily functions. (See Doc. 12 at 8–9 (stating that
“the ALJ identified that ‘the record’ supported [Plaintiff’s] allegations of pain”)). According to
Plaintiff, “the ALJ’s error was two-fold.” (Id. at 9).
First, Plaintiff claims the ALJ erred in his finding concerning the intensity, persistence,
and limiting effects of the symptoms caused by Plaintiff’s foot impairment because the ALJ
“acknowledged a clinical basis for pain, a need for surgery, and he never contradicted the
continued mobility determinations.” (Id. at 9–10). Second, Plaintiff states that because the ALJ
adopted his foot disorder as a severe impairment and acknowledged “its clinical significance, the
ALJ erred by adopting the state agency determinations because [they] limited [Plaintiff] to the
light level of exertion but made no accounting for the foot disorder.” (Id. at 10; see also Doc. 14

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at 3 (“What is surprising here is the fact that the ALJ could find additional severe impairments,
and have a less restrictive residual functional capacity than opined by the state agency—who
only considered a single impairment severe.”)). At base, Plaintiff argues that there is an internal
inconsistency in the ALJ’s decision because the RFC “conflicts with the rationale used by the
ALJ throughout the decision.” (Doc. 14 at 2–3).

Plaintiff also argues there is a lack of

substantial evidence because a “subsequent reviewer is not able to understand how the ALJ
reached his decision….” (Id.).
Defendant rationalizes the ALJ’s decision by, inter alia, repeatedly pointing to a
purported lack of evidence. (Doc. 13 at 6 (arguing that Plaintiff fails to “cite any medical source
that supports the need for restrictions as a result of his foot impairment”); id. at 7 (“The ALJ
could rely on the state agency physicians’ opinions in finding that Plaintiff could work with
some limitations, especially in light of the fact that Plaintiff points to no other medical source
opinions that should have been given more weight.”); id. at 9 (“[T]he ALJ considered the record
evidence as a whole, including that there were no medical source statements that indicated that
Plaintiff suffered from debilitating limitations.”); id. (“Plaintiff has not demonstrated any
symptoms unique to his foot impairment that would create additional limitations on his ability to
work.”)). But the ALJ didn’t cite lack of evidence as the basis for his decision that Plaintiff
retains the ability to perform light work. Indeed, the ALJ found the evidence sufficient to
categorize Plaintiff’s foot impairment as severe.
While this Court does not quest for a “perfect opinion,” Cobb v. Comm’r of Soc. Sec., No.
1:14-cv-842, 2015 WL 4029724, at *7 (W.D. Mich. July 1, 2015), the ALJ’s opinion is
inconsistent and confusing.

Specifically, the ALJ’s acknowledgement that Plaintiff lacks

mobility in his foot due to his severe foot impairment is inconsistent with the RFC the ALJ

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ultimately adopted. As noted, the ALJ found that Plaintiff is able “to perform light work as
defined in 20 C.F.R. 404.1567(b) and 416.967(b) meaning the claimant can lift, carry, push,
and/or pull 20 pounds occasionally and 10 pounds frequently; stand, walk, and/or sit for 6 hours
in an 8-hour workday; never climb ladders, ropes, or scaffolds; occasionally crouch, kneel, or
crawl; and no exposure to moving machinery or unprotected heights.” (Tr. 18). Further, the
ALJ’s reliance on the state agency consultants’ opinions does not clarify the matter because
those physicians did not consider Plaintiff’s foot impairment.
In sum, the internal inconsistencies in the ALJ’s RFC decision render it unsupported by
substantial evidence. See Easterday v. Comm’r of Soc. Sec., No. 15-13300, 2016 WL 5422101,
at *9 (E.D. Mich. Aug. 19, 2016) (recommending remand based on internal inconsistencies in
ALJ’s opinion and his failure to explain the RFC clearly); Phillips v. Comm’r of Soc. Sec., No.
4:11-cv-1952, 2013 WL 393023, at *5 (N.D. Ohio Jan. 30, 2013) (remanding for lack of
substantial evidence where ALJ’s opinion is “both confusing and conclusory”); Burgess v.
Astrue, No. 3:09-cv-461, 2011 WL 798119, at *5 (S.D. Ohio Mar. 1, 2011) (remanding where
“the ALJ’s statement is confusing and does not illuminate his rationale for devising a different
lifting restriction”).
Finally, the ALJ’s error is not harmless because it could lead to a different result. See
Cobb, 2015 WL 4029724, at *7 (citing Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)).
As Plaintiff explains, an individual with his age, education, and past work who is “limited to the
sedentary range of exertional where past skills would not be transferable, would be found
disabled under medical vocational rule 201.14.” (Doc. 12 at 12 (citing 20 C.F.R. Part 404,
Supart P, App’x 2, Table 1)).

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IV.

CONCLUSION
For the reasons stated, it is RECOMMENDED that the Court REVERSE the

Commissioner’s nondisability finding and REMAND this case to the Commissioner and
Administrative Law Judge (“ALJ”) under Sentence Four of § 405(g).
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). 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, 152–53 (1985).
IT IS SO ORDERED.

Date: October 31, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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