Bembry v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATIONS: The Commissioner's non-disability finding be vacated; no finding be made as to whether Plaintiff Willie D. Bembry was under a "disability" within the meaning of the Social Security Act; this matter be REMAN DED to the Social Security Administration for further consideration consistent with this Report and Recommendations, and any decision adopting this Report and Recommendations; and the case be terminated on the Court's docket. Objections to R&R due by 3/3/2017. Signed by Magistrate Judge Sharon L. Ovington on 2/17/2017. (lek)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
WILLIE D. BEMBRY,
Plaintiff,
vs.
NANCY A. BERRYHILL,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:15-cv-344
:
: District Judge Thomas M. Rose
: Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Willie D. Bembry brings this case challenging the Social Security

Administration’s denial of his applications for period of disability, Disability Insurance
Benefits, and Supplemental Security Income. He applied for benefits on July 26, 2012,
asserting that he could no longer work a substantial paid job due to the residual effects of
right ankle pilon fracture and morbid obesity. Administrative Law Judge (ALJ) Amelia
G. Lombardo concluded that he was not eligible for benefits because he is not under a
“disability” as defined in the Social Security Act.

1

Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #8), the
Commissioner’s Memorandum in Opposition (Doc. #13), the administrative record (Doc.
#6), and the record as a whole.
Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for
further proceedings. The Commissioner asks the Court to affirm ALJ Lombardo’s nondisability decision.
II.

Background
Plaintiff asserts that he has been under a “disability” since July 20, 2012. He was

thirty-five years old at the time and was therefore considered a “younger person” under
Social Security Regulations. He has a ninth-grade or limited education.
A.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ Lombardo that his main problem is his
right ankle. (Doc. #6, PageID #80). He fractured it and then had surgery to repair it in
July 2012. Id. He had a second surgery in August 2012 and a third in April 2013
because of an infection. Id. Plaintiff’s doctor, Dr. Peters, told him that he would have
constant swelling in his ankle and would get arthritis. Id. at 82. Plaintiff’s ankle is in
constant pain. Id. at 91. He explained, “It swells up to the point where I can’t even
hardly [] move my ankle back and forth . . . [It feels like] somebody has a sledge hammer
sitting on my foot and . . .[is] putting pressure on it.” Id. at 84. He takes pain medication
but it does not help. Id. at 84, 91. Plaintiff’s doctor prescribed a cane but he could not
afford to purchase it, so he uses a walker. Id. at 88-89.

2

Plaintiff’s weight also contributes to the problems with his ankle. Id. at 82. He
testified that he is six foot, five inches tall and weighs five-hundred pounds. Id. at 78.
He testified that he has been trying to lose weight and has lost fifty pounds over the past
year. Id. at 82, 86. He tries to do fifty pushups, fifty sit-ups, and fifty squats twice per
day. Id. at 87. He noted that the squats increase his ankle pain. Id. at 90-91. He also
tries to walk to the corner and back. Id. at 88.
Plaintiff lives in an apartment with his fiancée and teenage daughter. Id. at 78.
During the day, he tries to keep his ankle elevated above his heart. Id. at 89. His
daughter does the majority of the housework. Id. at 86. He sometimes makes his bed and
does some cooking. Id. at 86-87, 91. He goes grocery shopping once per month but
needs to lean on the cart or use a walker. Id. at 91. He is able to dress and groom
himself. Id. at 88. Plaintiff estimated that he could walk for ten minutes at a time, stand
for five minutes at a time, and lift forty to fifty pounds on a regular basis. Id. at 83-84.
When he is sitting, his ankle hurts and will swell up. Id. at 84.
B.

Medical Opinions
i. Paul G. Peters, M.D.

Dr. Peters, Plaintiff’s treating physician/surgeon, completed a basic medical
questionnaire on March 4, 2013 and a physical residual functional capacity questionnaire
on July 31, 2013. Id. at 460-63, 599-600. Dr. Peters noted that Plaintiff had a right ankle
pilon fracture and open wound. Id. at 599. He opined that Plaintiff was “temporarily
totally disabled” for between nine and eleven months, beginning on his original injury
date. Id. at 600.
3

In the July questionnaire, Dr. Peters indicated that he diagnosed right distal tibial
plafond fracture with fibular fracture, morbid obesity, and post-traumatic arthritis. Id. at
460. Plaintiff’s symptoms include pain, stiffness, and wound-healing issues. Id. at 460.
His range of motion was limited to between zero and twenty degrees. Id. Dr. Peters
opined that Plaintiff’s impairments lasted or can be expected to last at least twelve
months. Id.
Dr. Peters also opined that Plaintiff’s pain and other symptoms would frequently
interfere with the attention and concentration needed to perform simple work tasks. Id. at
461. He can walk less than one city block without severe pain or rest, sit for more than
two hours at one time for a total of at least six hours in an eight-hour day, stand for thirty
minutes at one time (possibly increasing to one to two hours with time), and stand/walk
for a total of less than two hours total in an eight-hour workday. Id. at 461-62. Dr. Peters
noted that Plaintiff needs a job that permits shifting positions at will from sitting,
standing, or walking and that he must use a cane or other assistive device while engaged
in occasional standing/walking. Id. at 462. He can frequently lift and/or carry less than
ten pounds, occasionally lift and/or carry up to twenty pounds, and never lift and/or carry
fifty pounds. Id. He can occasionally crouch/squat, rarely climb stairs, and never climb
ladders. Id. at 463. Dr. Peters indicated that on average, Plaintiff is likely to be absent
two days per month as a result of his impairments or treatment. Id.
ii. Williams Bolz, M.D. & Leon D. Hughes, M.D.
Dr. Bolz reviewed Plaintiff’s records on October 13, 2012. Id. at 100-07. Dr.
Bolz opined that Plaintiff could occasionally lift and/or carry fifty pounds, frequently lift
4

and/or carry twenty-five pounds, stand and/or walk for six hours in an eight-hour day,
and sit for six hours in an eight-hour day. Id. at 104. Additionally, he can never climb
ladders, ropes, and scaffolds, and frequently climb ramps/stairs, stoop, kneel, and crawl.
Id. at 104-05. Dr. Bolz concluded Plaintiff is not disabled. Id. at 107.
On January 28, 2013, Dr. Hughes reviewed Plaintiff’s records and agreed with the
findings of Dr. Bolz. Id. at 118-26.
III.

Standard of Review
The Social Security Administration provides Disability Insurance Benefits and

Supplemental Security Income to individuals who are under a “disability,” among other
eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42
U.S.C. §§ 423(a)(1), 1382(a). The term “disability”—as defined by the Social Security
Act—has specialized meaning of limited scope. It encompasses “any medically
determinable physical or mental impairment” that precludes an applicant from
performing a significant paid job—i.e., “substantial gainful activity,” in Social Security
lexicon. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70.
Judicial review of an ALJ’s non-disability decision proceeds along two lines:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.
2007). Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record
contains evidence contrary to those factual findings. Gentry v. Comm’r of Soc. Sec., 741
5

F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). Instead, the ALJ’s factual findings are upheld if the substantial-evidence standard
is met—that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to
support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a
scintilla of evidence but less than a preponderance . . . .” Rogers, 486 F.3d at 241
(citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.
The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647,
651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial
evidence, ‘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 in part
Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47
(6th Cir. 2004)).
IV.

The ALJ’s Decision
As noted previously, it fell to ALJ Lombardo to evaluate the evidence connected

to Plaintiff’s application for benefits. She did so by considering each of the five

6

sequential steps set forth in the Social Security regulations. See 20 C.F.R. §§ 404.1520,
416.920.2 She reached the following main conclusions:
Step 1:

Plaintiff has not engaged in substantial gainful employment since July
20, 2012.

Step 2:

He has the severe impairments of residual effects of right ankle pilon
fracture and morbid obesity.

Step 3:

He does not have an impairment or combination of impairments that
meets or equals the severity of one in the Commissioner’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4:

His residual functional capacity, or the most he could do despite his
impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239
(6th Cir. 2002), consists of “sedentary work . . . subject to the
following limitations: the ability to shift positions between sitting and
standing every 30 minutes for one to two minutes at a time; no
climbing ladders, ropes, or scaffolds; no exposure to heights or
hazards; occasional climbing ramps and stairs; the ability to use a
cane to ambulate, but the cane is not needed at the work station.”

Step 4:

He is unable to perform any of his past relevant work.

Step 5:

He could perform a significant number of jobs that exist in the
national economy.

(Doc. #6, PageID #s 57-69). These main findings led the ALJ to ultimately conclude that
Plaintiff was not under a benefits-qualifying disability. Id. at 68.
V.

Discussion
Plaintiff contends that the ALJ failed to properly weigh his treating physician’s

opinions. He also argues that the ALJ did not sufficiently consider his obesity at step
four of the sequential analysis and erred in finding that he was not credible.
2

The remaining citations will identify the pertinent Disability Insurance Benefits Regulations with full
knowledge of the corresponding Supplemental Security Income Regulations.

7

The Commissioner maintains that the ALJ properly weighed the medical opinions
of record and reasonably accommodated Plaintiff’s obesity. The Commissioner also
asserts that substantial evidence supports the ALJ’s finding that Plaintiff was not fully
credible.
A.

Obesity

The Social Security Administration defines obesity as “a complex, chronic disease
characterized by excessive accumulation of body fat. Obesity is generally the result of a
combination of factors (e.g., genetic, environmental, and behavioral).” SSR 02-1p, 2002
WL 34686281, at *2 (Soc. Sec. Admin. Sept. 12, 2002).
The Social Security Administration requires ALJs to consider obesity at steps two
through five of the five-step sequential evaluation process. Id. at *3; see also 20 C.F.R. §
404.1520(a)(4). Specifically, ALJs must “consider obesity in determining whether: [t]he
individual has a medically determinable impairment. . . [;] [t]he individual’s
impairment(s) is severe. . . [;] [t]he individual’s impairment(s) meets or equals the
requirements of a listed impairment in the listings. . . [; and] [t]he individual’s
impairment(s) prevents him or her from doing past relevant work and other work that
exists in significant numbers in the national economy. . . .” SSR 02-1p, 2002 WL
34686281, at *3. At each of these steps, because “[t]he combined effects of obesity with
musculoskeletal impairments can be greater than the effects of each of the impairments
considered separately,” ALJs “must consider any additional and cumulative effects of
obesity.” 20 C.F.R. § 404, Subpt. P, App. 1, § 1.00(Q).
In the present case, the ALJ found that morbid obesity is one of Plaintiff’s severe
8

impairments: “[Plaintiff] is also overweight. He initially reported a weight of 366
pounds and a height [of] 76 inches, and at the hearing, he reported a weight of 500
pounds. With a body mass index ranging from 44.5 to 60.9, [Plaintiff] is considered to be
morbidly obese, and that condition could aggravate [his] ankle condition.” (Doc. #6,
PageID #s 59-60).
She also properly acknowledged that although there is no listing for obesity, it
“may be disabling in and of itself and may dramatically worsen other medical
conditions.” Id. at 61 (citing 20 C.F.R. § 404, Subpt. P, App. 1, § 1.00(Q) and SSR 021p). Specifically, “if the obesity is of such a level that it results in an inability to
ambulate effectively, . . . it may substitute for a major dysfunction of a joint(s) . . . and
would support a finding of medical equivalence.” Id. (internal quotation marks omitted)
(citing SSR 02-1p). She concluded that Plaintiff does not have an impairment(s) that
meets or medically equals the severity of the listed impairments. Id.
At step four, ALJ Lombardo states that she considered the exacerbating effects of
Plaintiff’s obesity. Id. at 64. She explained that despite his physicians recommending
exercise and weight loss, there is no evidence in the record that he lost weight or tried to
do so. Id. (citations omitted). Although he testified that he had lost weight, “the records
show an increase of almost 140 pounds between April 2013 and May 2014.” Id.
(emphasis in original) (citations omitted). The ALJ concluded, “Such poor compliance
suggests that the exacerbating effects of obesity are not as severe as alleged by
[Plaintiff].” Id.
The ALJ’s consideration of Plaintiff’s failure to lose weight is improper under the
9

Social Security Administration’s Regulations and Rulings. See SSR 02-1p, 2002 WL
34686281. The Administration recognizes, “Obesity is a disease that requires treatment,
although in most people the effect of treatment is limited. However, if untreated, it tends
to progress.” SSR 02-1p, 2002 WL 34686281, at *8. In addition, “People with extreme
obesity [like Plaintiff], even with treatment, will generally continue to have obesity.
Despite short-term progress, most treatments for obesity do not have a high success rate.”
Id.
The Administration will “rarely use ‘failure to follow prescribed treatment’ for
obesity to deny or cease benefits.” Id. at *9. And, “Before failure to follow prescribed
treatment for obesity can become an issue in a case, [an ALJ] must first find that the
individual is disabled because of obesity or a combination of obesity and another
impairment(s).” Id. In other words, ALJ Lombardo must find that Plaintiff is disabled
because of obesity before she can consider whether Plaintiff failed to follow a prescribed
treatment. If the ALJ does find that an individual is disabled because of obesity, then the
ALJ can only find failure to follow prescribed treatment if all of the conditions of Social
Security Ruling 82-59, Title II and XVI: Failure to Follow Prescribed Treatment, are met.
Id.; see also SSR 82-59, 1982 WL 31384 (Soc. Sec. Admin. 1982).
In the present case, the analysis need not continue past the title of Social Security
Ruling 82-59 because Plaintiff’s treating physician did not prescribe exercise or weight
loss. “A treating source’s statement that an individual ‘should’ lose weight or has ‘been
advised’ to get more exercise is not prescribed treatment.” SSR 02-1p, 2002 WL
34686281, at *9. ALJ Lombardo states, “[Plaintiff’s] physicians have recommended
10

exercise and weight loss . . . .” (Doc. #6, PageID #64) (emphasis added) (citations
omitted). Recommendations do not fall under the category of “prescribed treatment.”
The ALJ’s failure to properly consider the severity of Plaintiff’s obesity taints her
entire analysis of Plaintiff’s residual functional capacity. She could not have properly
considered the combined effects of Plaintiff’s obesity and ankle injuries if she failed to
apply the correct legal criteria when she considered the severity of his obesity. See SSR
02-1p, 2002 WL 34686281, at *6. (“The combined effects of obesity with other
impairments may be greater than might be expected without obesity. For example,
someone with obesity and arthritis affecting a weight-bearing joint may have more pain
and limitation than might be expected from the arthritis alone.”); Dillard v. Comm’r of
Soc. Sec., No. 16-cv-12050, 2017 WL 431555, at *3 (S.D. Mich. Feb. 1, 2017) (“On
remand, the ALJ must make specific findings as to the effect, if any, of plaintiff’s obesity
on her other impairments . . . .”).
Therefore, substantial evidence does not support the ALJ’s residual functional
capacity assessment.
B.

Plaintiff’s Credibility

Plaintiff contends the ALJ failed to give adequate consideration to his pain,
credibility, and subjective complaints. (Doc. #8, PageID #s 641-45). The Sixth Circuit
established a two-part analysis for assessing the credibility of a plaintiff’s statements
about his/her symptoms:
First, the ALJ will ask whether there is an underlying
medically determinable physical [or mental] impairment that
could reasonably be expected to produce the claimant’s
11

symptoms. 20 C.F.R. § 416.929(a). Second, if the ALJ finds
that such an impairment exists, then he must evaluate the
intensity, persistence, and limiting effects of the symptoms on
the individual’s ability to do basic work activities. Id.
Rogers, 486 F.3d at 247; see also 20 C.F.R. § 416.929. When evaluating the intensity,
persistence, and limiting effects of a plaintiff’s symptoms, the ALJ must consider the
following factors: daily activities; location, duration, frequency, and intensity of the pain
or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness,
and side effects of any medication the plaintiff takes or has taken to alleviate symptoms;
treatment, other than medication, the plaintiff receives or has received for relief of
symptoms; any measures the plaintiff uses or has used to relieve symptoms; and other
factors concerning the plaintiff’s functional limitations and restrictions due to pain or
other symptoms. 20 C.F.R. §416.929(c)(3).
The ALJ “must then make a finding on the credibility of the individual’s
statements about symptoms and their functional effects.” SSR 96-7p, 1996 WL 374186,
at *4 (Soc. Sec. Admin. July 2, 1996).3 “Social Security Ruling 96-7p also requires the
ALJ explain his credibility determinations in his decision such that it must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight the
adjudicator gave to the individual’s statements and the reasons for that weight.” Rogers,
486 F.3d at 248 (internal quotation and footnote omitted); see also Felisky v. Bowen, 35

3

The Social Security Administration issued SSR 16-3p, effective March 16, 2016, which supersedes SSR
96-7p. At the time of the ALJ’s decision in this case, SSR 96-7p was still in effect.

12

F.3d 1027, 1036 (6th Cir. 1994) (“If an ALJ rejects a claimant’s testimony as incredible,
he must clearly state his reasons for doing so.”) (citation omitted).
“[A]n ALJ’s findings based on the credibility of the applicant are to be accorded
great weight and deference, particularly since an ALJ is charged with the duty of
observing a witness’s demeanor and credibility.” Walters v. Comm'r of Soc. Sec., 127
F.3d 525, 531 (6th Cir. 1997) (citing Villarreal v. Sec’y of Health & Human Servs., 818
F.2d 461, 463 (6th Cir. 1987); see Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th
Cir. 2007). However, an ALJ’s assessment of credibility must be supported by
substantial evidence. Cruse, 502 F.3d at 542 (citing Walters, 127 F.3d at 531).
In the present case, ALJ Lombardo found that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms. However,
[Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible . . . .” (Doc. #6, PageID #62). She provided several reasons
for her assessment of Plaintiff’s credibility.
The ALJ first finds, “[Plaintiff’s] assertion that he has not been able to work at any
time since the alleged disability onset date is not supported by objective medical
evidence.” Id. Specifically, Plaintiff “recovered relatively well, and [has] improved well
within 12 months of the initial surgery, to the point he has been able to perform at least
[a] reduced range of sedentary work . . . .” Id. at 63. Substantial evidence does not
support the ALJ’s finding.
Plaintiff first underwent surgery on July 21, 2012 for closed reduction of the right
pilon fracture with spanning external fixation placement. Id. at 412. On August 10,
13

2012, he underwent a second surgery for irrigation and debridement of his right lower
leg, removal of the external fixator, and open reduction internal fixation of his right distal
tibia and fibula. Id. at 314. For the next several months, Plaintiff appeared to be slowly
recovering. For example, in October 2012, Dr. Peters noted that x-rays revealed “[s]ome
early signs of healing . . . .” Id. at 374. He noted in March 2013 that Plaintiff’s ankle
was “healed radiographically,” but also noted that Plaintiff reported discomfort. Id. at
596.
On April 8, 2013, approximately eight months after Plaintiff’s second surgery, he
presented to Miami Valley Hospital with swelling of his right lower extremity up to his
knee. Id. at 478. Despite elevating his leg, the swelling persisted for two days and then
began bleeding from the lateral incision. Id. Although x-rays revealed that the hardware
in his ankle was still in place and there were no signs of hardware failure, Dr. Peters
diagnosed right ankle late wound dehiscence breakdown with infected deep hardware.
Id. at 471, 593. On April 15, 2013, Plaintiff underwent surgery for removal of hardware,
lateral malleolus and distal fibula, and application of wound vacuum-assisted closure. Id.
at 471. Dr. Peters informed Plaintiff that long term, he may need an ankle fusion. Id. at
593.
By June 10, 2013, Plaintiff was still experiencing episodic swelling and
degenerative changes. Id. at 588. X-rays revealed continued ossification of his distal
tibia fracture, exuberant callus formation within the syndesmosis, and remarkable
arthritic change in the lateral. Id. at 597. Dr. Peters recommended that he increase
activity slowly as tolerated. Id. He further opined, “He has not been working or really
14

doing anything on this ankle and so building up to activities to resume his strength and
endurance will take a prolonged period of time.” Id. (emphasis added).
Plaintiff last saw Dr. Peters in July 2013. Id. at 464. Dr. Peters noted that Plaintiff
still used a walker for stability but used it more like a cane. Id. He also noted that
Plaintiff could continue to wear his lace-up ankle brace as needed, should increase his
activity as tolerated, and may use a cane to help with balance for longer distances. Id.
As this brief narrative illustrates, within the twelve months after Plaintiff’s initial
surgery, he experienced several complications and underwent two additional surgeries.
The ALJ’s conclusion that Plaintiff “improved well within 12 months of the initial
surgery” is not supported by substantial evidence.
The record further reveals that Plaintiff’s difficulty with his ankle continued after
his treatment with Dr. Peters. For example, in November 2013, Plaintiff presented to his
primary-care physician, Dr. Martin Schear, reporting right ankle pain. Id. at 609-14.
Plaintiff was also experiencing fatigue and sleep disturbances. Id. Dr. Schear noted that
his right ankle was tender through range of motion and he had a limping gait. Id. at 611.
He also noted, “rx cane . . . .” Id. Plaintiff saw Dr. Schear again in February 2014. Id. at
604-08. He reported right ankle pain, fatigue, and shortness of breath. Id. at 605. Upon
examination, Dr. Schear observed three scars, tenderness, and anterior lateral edema. Id.
In March 2014, Plaintiff changed his primary-care physician to Dr. Rhea Rowser.
Id. at 575. Although Dr. Rowser noted a “stable gait,” she also indicated that Plaintiff’s
right foot pain prohibited his ability to exercise. Id. Additionally, Plaintiff reported no
arthritic pain but indicated he has swelling and morning stiffness. Id. Upon examination,
15

Dr. Rowser noted pain with range of motion in his right ankle. Id. at 576.
Together, Dr. Rowser’s treatment notes, Dr. Schear’s treatment notes, Dr. Peters’s
surgery and treatment notes, and hospital records constitute substantial objective medical
evidence supporting Plaintiff’s allegation of disability, and therefore, the ALJ’s
conclusion that the record lacks objective medical evidence is not supported by
substantial evidence.
The ALJ also found that Plaintiff’s description of his daily activities was
“inconsistent with his complaints of disabling symptoms and limitations.” Id. at 64. The
ALJ noted that Plaintiff testified that his daughter did all the housework but he sometimes
makes his bed. Further, he testified that he goes grocery shopping once a month and does
fifty push-ups, fifty sit-ups, and fifty squats twice a day.” Id. (citations omitted). The
ALJ noted that although Plaintiff said the squats increased his ankle pain, “this activity
nonetheless demonstrates an ability to perform the reduced range of sedentary work . . . .”
Id.
The ALJ’s finding that these activities are inconsistent with the level of limitation
Plaintiff alleges is not supported by substantial evidence. Plaintiff’s ability to
“sometimes” make his bed is not inconsistent with his alleged disabling symptoms.
Plaintiff testified that he can he walk for up to ten minutes at a time, id. at 83, and it is
unlikely that making his bed would take more time than that. Although the ALJ is
correct that Plaintiff goes to the store once a month, he testified that he has to use his
walker or lean against the cart when walking and has to sit down after twenty minutes.
Id. at 91-92. Further, the ALJ omits or ignores that he does push-ups against the kitchen
16

counter because he cannot get down on the ground and he does sit-ups in bed. Id. at 87.
Plaintiff also said that he tries to do his exercises twice per day. Id. Plaintiff’s limited
activities are not inconsistent with his allegations of disabling symptoms.
The ALJ found that she “cannot reasonably infer that [Plaintiff] has not worked
since the alleged onset date due solely to his impairments.” Id. at 64. She notes that
Plaintiff stopped working in February 2011, more than one year before his alleged
disability onset date. Id. He stopped working “because he was ‘terminated,’ not because
of any alleged disability.” Id. (quoting Exhibit 2E, page 2). The ALJ concludes, “Thus,
it is reasonable to infer that [Plaintiff’s] lack of employment is not necessarily due to any
disabling impairments.” Id. In reaching this conclusion, however, the ALJ does not
consider any other potential reasons for Plaintiff’s lack of employment. Given the
multitude of possible reasons for unemployment,4 and the lack of evidence in the record
concerning why he was not employed at his alleged disability onset date, it is not
reasonable to infer Plaintiff’s lack of employment is probative of his disability status or
credibility.
The ALJ also considers Plaintiff’s unemployment benefits, noting that Plaintiff
received unemployment benefits in the second and third quarters of 2012, and in order to
receive those benefits, he had to certify that he was ready, willing, and able to work. Id.
The ALJ found that such a statement is inconsistent with Plaintiff’s allegations that he

4

In Feburary 2011, Ohio’s unemployment rate was 9.1. Bureau of Labor Statistics, Databases, Tables &
Calculators by Subject, U.S. DEP’T OF LABOR, https://data.bls.gov/timeseries/LASST390000000000003
(data extracted on Feb. 14, 2017).

17

has been unable to work since July 20, 2012. Id. Substantial evidence does not support
this finding.
The Ohio Department of Job and Family Services divides each year into four
quarters. The second quarter of 2012 includes April 1 through June 30. See
Unemployment Compensation FAQs, OHIO DEP’T OF JOB & FAMILY SERVS.,
https://jfs.ohio.gov/unemp_comp_faq/faq_elig_definitions1.stm (last visited Feb. 14,
2017). Plaintiff does not claim that he was disabled between April 1, 2012 and June 30,
2012. His alleged disability onset date is July 20, 2012.
The third quarter ranges from July 1 through September 30. Id. Thus, there is a
possibility that Plaintiff received unemployment after his alleged disability onset date.
However, the limited evidence in the record does not indicate if he received
unemployment for the entire third quarter. It only shows that Plaintiff received $980.00
in the third quarter of 2012 and $1,568.00 in the second quarter of 2012. (Doc. #6,
PageID #234). The higher amount paid in the second quarter suggests that Plaintiff did
not receive unemployment for the entire third quarter. Under these particular facts.
Plaintiff’s receipt of unemployment benefits does not work against his credibility because
the termination of these benefits in the third quarter, shortly after his disability onset date,
is consistent with his asserted inability to work starting on July 20, 2012. See
Webster v. Colvin, No. 3:13-CV-497, 2014 WL 4095341, at *9 (E.D. Tenn. Aug. 19,
2014) (“Generally, ‘the underlying circumstances will be of greater relevance than the
mere application for and receipt of the benefits.’”) (citation omitted).

18

As explained in more detail above, the ALJ also improperly considered Plaintiff’s
failure to follow prescribed treatment when weighing his credibility. The Commissioner
acknowledges that the ALJ “inappropriately considered Plaintiff’s failure to lose weight .
. . , but contends that her error was harmless because “one factor does not warrant
reversal in light of the overall reasonableness of the ALJ’s analysis.” (Doc. #13, PageID
#675). The Commissioner’s contention lacks merit. For the reasons stated above, the
ALJ’s overall analysis of Plaintiff’s credibility is not reasonable and is not supported by
substantial evidence.
Accordingly, Plaintiff’s Statement of Errors is well taken.5
C.

Remand

A remand is appropriate when the ALJ’s decision is unsupported by substantial
evidence or when the ALJ failed to follow the Administration’s own regulations and that
shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial
right. Bowen, 478 F.3d at 746. Remand may be warranted when the ALJ failed to
provide “good reasons” for rejecting a treating medical source’s opinions, see Wilson,
378 F.3d at 545-47; failed to consider certain evidence, such as a treating source’s
opinions, see Bowen, 478 F.3d at 747-50; failed to consider the combined effect of the
plaintiff’s impairments, see Gentry, 741 F.3d at 725-26; or failed to provide specific
reasons supported by substantial evidence for finding the plaintiff lacks credibility, see
Rogers, 486 F.3d at 249.
5

In light of the above discussion, and the resulting need to remand this case, an in-depth analysis of
Plaintiff’s challenge to the ALJ’s assessment his treating physician’s opinion is unwarranted.

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Under sentence four of 42 U.S.C. § 405(g), the Court has authority to affirm,
modify, or reverse the Commissioner’s decision “with or without remanding the cause for
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand
under sentence four may result in the need for further proceedings or an immediate award
of benefits. E.g., Blakley, 581 F.3d at 410; Felisky, 35 F.3d at 1041. The latter is
warranted where the evidence of disability is overwhelming or where the evidence of
disability is strong while contrary evidence is lacking. Faucher v. Sec’y of Health &
Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
A judicial award of benefits is unwarranted in the present case because the
evidence of disability is not overwhelming and the evidence of disability is not strong
while contrary evidence is lacking. However, Plaintiff is entitled to an Order remanding
this case to the Social Security Administration pursuant to sentence four of § 405(g) due
to the problems discussed above. On remand, the ALJ should be directed to evaluate the
evidence of record, including the medical source opinions, under the applicable legal
criteria mandated by the Commissioner’s Regulations and Rulings and by case law; and
to evaluate Plaintiff’s disability claim under the required five-step sequential analysis to
determine anew whether Plaintiff was under a disability and whether his applications for
period of disability, Disability Insurance Benefits, and Supplemental Security Income
should be granted.

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IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be vacated;

2.

No finding be made as to whether Plaintiff Willie D. Bembry was under a
“disability” within the meaning of the Social Security Act;

3.

This matter be REMANDED to the Social Security Administration under
sentence four of 42 U.S.C. § 405(g) for further consideration consistent
with this Report and Recommendations, and any decision adopting this
Report and Recommendations; and

4.

The case be terminated on the Court’s docket.

Date: February 17, 2017

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendation is based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge
otherwise directs. A party may respond to another party’s objections within
FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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