Millsap v. Commissioner of Social Security
REPORT AND RECOMMENDATION1 THAT: (1) THE ALJS NON-DISABILITY FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (3) THIS CASE BE CLOSED.Objections to R&R due by 2/21/2017.Signed by Magistrate Judge Michael J. Newman on 2/7/17. (kma)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
THERESA A. MILLSAP,
Case No. 3:16-cv-00103
District Judge Walter H. Rice
Magistrate Judge Michael J. Newman
REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND
REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER
THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT
WITH THIS OPINION; AND (3) THIS CASE BE CLOSED
This is a Social Security disability benefits appeal.
At issue is whether the
Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore
unentitled to Disability Insurance Benefits (“DIB”).
This case is before the Court upon
Plaintiff’s Statement of Errors (doc. 7), the Commissioner’s memorandum in opposition (doc. 9),
Plaintiff’s reply (doc. 10), the administrative record (doc. 6), and the record as a whole.2
Plaintiff filed an application for DIB asserting disability as of September 1, 2004 as a
result of a number of impairments including, inter alia, chronic obstructive lung disease, carpal
tunnel syndrome, and depression. PageID 201, 322-23.
Attached hereto is a NOTICE to the parties regarding objections to this Report and
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID
After an initial denial of her application, Plaintiff received a hearing before ALJ Gregory
Kenyon on September 30, 2014.
The ALJ issued a written decision on
November 26, 2014 finding Plaintiff not disabled. PageID 199-207. Specifically, the ALJ’s
findings were as follows:
The claimant last met the insured status requirements of the Social
Security Act on December 31, 2009.
The claimant did not engage in substantial gainful activity during the
period from her alleged onset date of September 1, 2004 through her
date last insured of December 31, 2009 (20 CFR 404.1571 et seq.).
Through the dates last insured, the claimant had the following severe
impairments: chronic obstructive lung disease; degenerative disk
disease of the lumbosacral spine; degenerative joint disease of the
lumbosacral spine; carpal tunnel syndrome; mild degenerative joint
disease of the knees; and depression (20 CFR 404.1520(c)).
Through the dates last insured, the claimant did not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and
The claimant had the residual functional capacity [“RFC”] to perform
light work as defined in 20 CFR 404.1567(b), subject to the
following limitations: (1) occasional crouching, crawling, kneeling,
stooping, balancing, and climbing of ramps and stairs; (2) no climbing
of ladders, ropes, or scaffolds; (3) no work around hazards such as
unprotected heights or dangerous machinery; (4) occasional overhead
reaching; (5) no concentrated exposure to temperature extremes or
respiratory irritants; (6) frequent use of the hands for handling and
fingering; and (7) limited to performing unskilled, simple, repetitive
Through the dates last insured, the claimant was unable to perform any
The Social Security Administration (“SSA”) classifies jobs as sedentary, light, medium, heavy,
and very heavy depending on the physical exertion requirements. 20 C.F.R. § 404.1567. Light work
“involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up
to 10 pounds” and “requires a good deal of walking or standing, or . . . sitting most of the time with some
pushing and pulling of arm or leg controls.” Id. § 404.1567(b). An individual who can perform light
work is presumed also able to perform sedentary work. Id. Sedentary work “involves lifting no more than
10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties.” Id. § 404.1567(a).
past relevant work (20 CFR 404.1565).
The claimant was born [in] 1960 and was 49 years old, which is
defined as a younger individual age 18-49, on the latter date last
insured (20 CFR 404.1563).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is ‘not disabled,’ whether or not
the claimant has transferable job skills (See SSR 82-41 and 20 CFR
Part 404, Subpart P, Appendix 2).
Through the dates last insured, considering the claimant’s age,
education, work experience, and [RFC], there were jobs that existed in
significant numbers in the national economy that the claimant could
have performed (20 CFR 404.1569 and 404.1569(a)).
The claimant was not under a disability, as defined in the Social
Security Act, at any time from September 1, 2004, the alleged onset
date, through December 31, 2009, the date last insured for cash
benefits, or through March 31, 2010, the date last insured for eligibility
to Medicare (20 CFR 404.1520(g)).
Thereafter, the Appeals Council denied review on February 25, 2016, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 58-63.
Plaintiff then filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir.
2007) (noting that, “[u]nder the Federal Rules of Appellate Procedure, [claimant] had 60 days
from the Appeals Council’s notice of denial in which to file his appeal”).
Evidence of Record
In his decision, the ALJ set forth a detailed recitation of the underlying medical evidence
in this case. PageID 202-03. Plaintiff, in her Statement of Errors, also summarizes the evidence
of record. Doc. 7 at PageID 1884-87. The Commissioner also summarizes the evidence of
record and presents no objection to Plaintiff’s summary. Doc. 9 at PageID 1900-02. Except as
otherwise noted herein, the undersigned incorporates the summary of evidence as set forth by the
ALJ and Plaintiff.
Standard of Review
The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 74546 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found Plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the
Commissioner will not be upheld where the [Social Security Administration] fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen, 478 F.3d at 746.
To be eligible for disability benefits, a claimant must be under a “disability” as defined
by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are both “medically determinable”
and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging
in “substantial gainful activity” that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential
review poses five questions:
Has 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 (the “Listings”), 20 C.F.R. Subpart P,
Considering the claimant’s RFC, can he or she perform his or her past
Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
experience, and RFC -- do significant numbers of other jobs exist in
the national economy which the claimant can perform?
20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F. Supp.2d 816, 818
(S.D. Ohio 2001). A claimant bears the ultimate burden of establishing disability under the
Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
In her Statement of Errors, Plaintiff argues that the ALJ failed to: (1) properly evaluate
her credibility and allegations of disabling pain; (2) incorporate her difficulties in maintaining
concentration, persistence, or pace in the hypothetical questions posed to the Vocational Expert
(“VE”); and (3) properly make a Step Five determination supported by substantial evidence.
Doc. 7 at PageID 1890-94.
Finding Plaintiff’s first alleged error to be well taken, the
undersigned does not address the merits of Plaintiff’s remaining two contentions.
With regard to credibility and allegations of disabling pain and symptoms, Plaintiff
argues that the ALJ failed to comply with Social Security Ruling (“SSR”) 96-7p. A reviewing
Court must “accord the ALJ’s determinations of credibility great weight and deference
particularly since the ALJ has the opportunity, which we do not, of observing a witness’s
demeanor while testifying.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003)
(citations omitted). Nevertheless, in setting forth a credibility finding, the ALJ’s determination
“cannot be based on an intangible or intuitive notion about an individual’s credibility[,]” and
instead, “[t]he reasons for the credibility finding must be grounded in the evidence and
articulated in the determination or decision.” See SSR 96-7p. In fact, the ALJ must set forth
“specific reasons for the finding on credibility, supported by the evidence in the case record, and
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.” Id.
Pursuant to 20 C.F.R. § 404.1529 and SSR 96-7p, upon determining that “an underlying
physical or mental impairment” exists “that could reasonably be expected to produce the
individual’s pain or other symptoms[,]” the ALJ must “evaluate the intensity, persistence, and
limiting effects of the individual’s symptoms to determine the extent to which the symptoms
limit the individual’s ability to do basic work activities.” See SSR 96-7p. Where a claimant’s
subjective complaints concerning “the intensity, persistence, or functionally limiting effects of
pain or other symptoms are not substantiated by objective medical evidence,” the ALJ must then
determine the claimant’s credibility “based on a consideration of the entire case record.” See id.
In considering the entire case record, 20 C.F.R. § 404.1529 and SSR 96-7p also require
consideration of the following factors:
The individual’s daily activities;
The location, duration, frequency, and intensity of the individual’s
pain or other symptoms;
Factors that precipitate and aggravate the symptoms;
The type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms;
Treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms;
Any measures other than treatment the individual uses or has used to
relieve pain or other symptoms (e.g., lying flat on his or her back,
standing for 15 to 20 minutes every hour, or sleeping on a board); and
Any other factors concerning the individual’s functional limitations
and restrictions due to pain or other symptoms.
See SSR 96-7p; see also 20 C.F.R. § 404.1529(c)(3).
Here, Plaintiff testified that she experienced pain, swelling, burning, and locking in her
knees that frequently resulted in her being unable to stand up. PageID 220-21. Plaintiff further
testified that, on a day-to-day basis, she rated her knee pain as an “eight” out of “ten.” Id. The
ALJ found that Plaintiff’s “allegations and subjective complaints lack[ed] credibility to the
extent that they purport[ed] to describe a condition of disability for Social Security purposes
through the dates last insured.” PageID 206. In making his determination, the ALJ found the
While diagnostic imaging studies demonstrated degenerative joint disease
with internal derangement of both knees, there is no evidence that the
claimant had any knee surgeries through the dates last insured: again, all
treatment was conservative. The level of treatment during the period at
issue supports limiting the claimant to work at the light level exertion at
most. Postural restrictions have been included to further take into account
the effects of the claimant’s musculoskeletal problems.
PageID 205. The Court finds the ALJ’s assessment of Plaintiff’s symptoms and credibility
unsupported by substantial evidence for three reasons: (1) Plaintiff’s lack of knee surgery does
not lessen her credibility; (2) the ALJ failed to acknowledge extensive additional and relevant
medical evidence supporting Plaintiff’s pain allegations; and (3) the ALJ failed to specifically
articulate how he made his credibility determination.
First, the ALJ insinuated that Plaintiff’s failure to have knee surgery revealed her pain
level could not have been severe. PageID 205. The ALJ points to no portion of the record where
any physician recommended that Plaintiff should have surgery on both of her knees. Indeed,
treatment notes in the record indicate that Plaintiff was “advised that it was uncertain whether
surgery would help[.]” Page ID 780. Moreover, given the inherent risks associated with any
surgery, the fact that Plaintiff did not have surgery on either or both of her knees fails to create a
reasonable inference that her pain level was not severe. See Ladwig v. Comm’r of Soc. Sec., No.
3:15-cv-00128, 2016 WL 3434024, at *9 (S.D. Ohio June 22, 2016) (finding claimant’s act of
avoiding or delaying surgery failed “to create a reasonable inference that his pain levels were not
severe” in light of “the inherent risks associated with any surgery”). Likewise, it is unclear how
Plaintiff’s course of conservative treatment, where surgery has not been recommended, impacts
his credibility. See Pickett v. Astrue, No. 3:10-cv-177, 2011 WL 1626559, at *8 (S.D. Ohio
April 28, 2011) (finding it “unclear how Plaintiff’s course of ‘conservative’ [treatment] at the
direction of his neurologist, in light of the fact that no further surgical interventions are
recommended, impacts the credibility of Plaintiff’s complaints of pain”).
Second, the ALJ failed to acknowledge extensive and additional relevant medical
evidence supporting Plaintiff’s allegations of pain. For example, the ALJ failed to acknowledge
medical records from 2002 documenting Plaintiff’s knee pain, as well as the swelling of
Plaintiff’s left knee. PageID 641, 655. Similarly, the ALJ failed to consider treatment notes
from Wright State Orthopedics and Sports Medicine dated January 17, 2007 documenting a
medial meniscus tear, OCD lesion, patellofemoral pain, disuse atrophy, 1+ tibial pulse and
anterior compartment crepitus with seated knee extension (more aggressively on the left than
right), a positive compression test, a positive McMurray’s test, and a positive medial joint line
tenderness.4 PageID 696.
As set forth in SSR 96-7p, when the record contains findings “that may result from, or be
associated with, the symptom of pain,” such “ findings tend to lend credibility to an individual’s
allegations about pain or other symptoms and their functional effects.” See Pickett, 2011 WL
1626559, at *8. The Court finds that the ALJ’s failure to fully and fairly consider all medical
evidence in the record merits reversal and remand. See King v. Heckler, 742 F.2d 968, 974-75
(6th Cir. 1984).
Finally, beyond remarking on Plaintiff’s lack of knee surgeries and conservative
treatment, the ALJ offers no explanation as to how the record as a whole supports a finding that
Plaintiff lacks credibility. Nor does the ALJ offer an analysis of the majority of the 96-7p factors
A meniscus is a piece of cartilage that acts like a cushion between the shinbone and thigh bone.
A torn meniscus causes pain, swelling, stiffness, and trouble extending the knee fully. Mayoclinic.org,
http://www.mayoclinic.org/diseases-conditions/tornmeniscus/basics/definition/con-20029237 (last visited Nov. 1, 2016). Osteochondritis dissecans (OCD) is
a joint condition in which bone underneath the cartilage of a joint dies due to lack of blood flow. This
bone and cartilage can then break loose, causing pain and possibly hinder joint motion. Mayoclinic.org,
Osteochondritis dissecans definition, http://www.mayoclinic.org/diseases-conditions/osteochondritisdissecans/basics/definition/CON-20024803 (Last visited on Nov. 11, 2016). Patellofemoral pain is pain
at the front of the knee and around the kneecap. The knee pain often increases when one runs, walks up
or down stairs, sits for long periods, or squats. Mayoclinic.org, Patellofemoral pain definition,
visited on Nov. 11, 2016). In order to conduct a compression test, the patient lies down with his or her
knees flexed to 90 degrees. The examiner applies pressure to the plantar aspect of the heel, applying an
axial load to the tibia while simultaneously internally & externally rotating the tibia. A compression test
is positive if during the test the patient experiences pain and knee clicking. A positive test can imply a
http://ahn.mnsu.edu/athletictraining/spata/kneemodule/specialtests.html/ (last visited on Nov. 1, 2016).
The test is performed by having the patient lie down with their hip and knee bent to 90 degrees. The
physician then grasps the heel in one hand and places the other hand over the knee, with the thumb and
fingers on the joint line. The physician then gently rotates the Tibia with the heel internally rotated with a
mild valgus force (for the lateral compartment) and externally rotated with a mild varus force (for the
medial compartment). The McMurray test is used to evaluate individuals for tears in the meniscus of the
knee. A tag, caused by a tear will cause a palpable or even audible click on extension of the knee. A
positive test indicates a tear of the medial meniscus. University of California, San Francisco, Sports
20 C.F.R. § 404.1529(c)(3). Because the ALJ failed to specifically articulate how he made his
credibility determination, the undersigned concludes that the ALJ’s credibility assessment is
unsupported by substantial evidence.
When the ALJ’s non-disability determination is unsupported by substantial evidence, the
Court must determine whether to remand the matter for rehearing or to award benefits.
Generally, benefits may be awarded immediately “if all essential factual issues have been
resolved and the record adequately establishes a plaintiff’s entitlement to benefits.” Faucher v.
Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan,
905 F.2d 918, 927 (6th Cir. 1990). The Court may award benefits where proof of disability is
strong and opposing evidence is lacking in substance, so that remand would merely involve the
presentation of cumulative evidence, or where proof of disability is overwhelming. Faucher, 17
F.3d at 176; see also Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994).
Here, evidence of disability is not overwhelming and therefore, a remand for further
proceedings is proper so that the ALJ can properly assess all opinion evidence of record anew in
light of the foregoing findings.
IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioner’s nondisability finding be found unsupported by substantial evidence, and REVERSED; (2) this
matter be REMANDED to the Commissioner under the Fourth Sentence of 42 U.S.C. § 405(g)
for proceedings consistent with this opinion; and (3) this case be CLOSED.
February 7, 2017
s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
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 Recommendation. This period is not extended by virtue of Fed. R.
Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system.
If, however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an
extension of the deadline to file objections by filing a motion for extension, which the Court may
grant upon a showing of good cause.
Any objections filed shall specify the portions of the Report and Recommendation
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. As noted above, this period is not extended by virtue of Fed. R. Civ.
P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may forfeit rights on appeal.
See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50
(6th Cir. 1981).
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