Voorhies v. Social Security Administration

Filing 28

REPORT AND RECOMMENDATION: In light of the foregoing, the Magistrate Judge recommends that plaintiff's motion for judgment on the administrative record be GRANTED and that the decision of the SSA be REVERSED and the cause REMANDED for further administrative proceedings consistent with this Report. Signed by Magistrate Judge John S. Bryant on 4/1/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
NICHOLAS SHANE VOORHIES
v.
SOCIAL SECURITY ADMINISTRATION

To:

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)
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)
)

No. 1:13-0007
Judge Nixon/Bryant

The Honorable John T. Nixon, Senior Judge

REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. §§ 405(g) and 1383(c), to
obtain judicial review of the final decision of the Social Security Administration (“SSA” or
“the Administration”) denying plaintiff’s applications for disability insurance benefits and
supplemental security income, as provided under Titles II and XVI of the Social Security Act.
The case is currently pending on plaintiff’s motion for judgment on the administrative record
(Docket Entry No. 19), to which defendant has responded (Docket Entry No. 23). Plaintiff
has further filed a reply in support of his motion. (Docket Entry No. 27) Upon consideration
of these papers and the transcript of the administrative record (Docket Entry No. 11),1 and
for the reasons given below, the undersigned recommends that plaintiff’s motion for
judgment be GRANTED and that the decision of the SSA be REVERSED and the cause
REMANDED for further administrative proceedings consistent with this Report.

1

Referenced hereinafter by page number(s) following the abbreviation “Tr.”

I. Introduction
Plaintiff filed his applications for benefits in April 2009, alleging disability
onset as of December 1, 2007, due to strokes, right hand shaking, ankle and back problems,
head injury, high blood pressure, and confusion. (Tr. 16, 74) His applications were denied at
the initial and reconsideration stages of state agency review. Plaintiff subsequently
requested de novo review of his case by an Administrative Law Judge (ALJ). The case came
to be heard by the ALJ on August 24, 2011, when plaintiff appeared with counsel and gave
testimony. (Tr. 454-75) Testimony was also received from an impartial vocational expert.
At the conclusion of the hearing, the ALJ took the matter under advisement until October 6,
2011, when she issued a written decision finding plaintiff not disabled. (Tr. 16-25) That
decision contains the following enumerated findings:
1.

The claimant meets the insured status requirements of the Social Security Act
through March 31, 2012.

2.

The claimant has not engaged in substantial gainful activity since the alleged
onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3.

The claimant has the following severe combination of impairments:
hypertension, residuals from fractures, pancreatitis, lumbar degenerative disk
disease and alcohol dependence (20 CFR 404.1520(c) and 416.920(c)).

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).

5.

After careful consideration of the entire record, the Administrative Law Judge
finds that the claimant has the residual functional capacity to lift and carry 50
pounds occasionally and 25 pounds frequently; stand and/or walk six hours in
an eight-hour workday; sit six hours in an eight-hour workday; with
unlimited ability to push and pull; and frequent ability to climb, balance,
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stoop, kneel, crouch and crawl. The claimant can also understand, remember
and carry out simple and detailed tasks, but not complex tasks.
6.

The claimant is capable of performing past relevant work as a kitchen helper
and assembly line worker/line worker. This work does not require the
performance of work-related activities precluded by the claimant’s residual
functional capacity (20 CFR 404.1565 and 416.965).

7.

The claimant has not been under a disability, as defined in the Social Security
Act, from December 1, 2007, through the date of this decision (20 CFR
404.1520(f) and 416.920(f)).

(Tr. 18-19, 24)
On December 7, 2012, the Appeals Council denied plaintiff’s request for
review of the ALJ’s decision (Tr. 6-10), thereby rendering that decision the final decision of
the Administration. This civil action was thereafter timely filed, and the court has
jurisdiction. 42 U.S.C. §§ 405(g), 1383(c). If the ALJ’s findings are supported by substantial
evidence, based on the record as a whole, then those findings are conclusive. Id.

II. Review of the Record
The following summary of the pertinent medical evidence in this case is taken
verbatim from defendant’s brief (Docket Entry No. 23 at 8-12), although the undersigned has
reordered the paragraphs of the summary chronologically.
Plaintiff was playing around/wrestling in October 2007, and presented to the
emergency room with complaints of constant, sharp right wrist pain, reportedly relieved by
nothing (Tr. 21). However, right wrist X-ray showed no evidence of any
fracture/dislocation; Plaintiff was merely placed in a wrist brace (Tr. 21). Blood pressure was
elevated, with readings of 173/120 and 160/98 (Tr. 21).
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In May 2008, Plaintiff reported to emergency room staff that he had lacerated his left
index finger while at work at Zaxby’s (Tr. 21). However, only minimal bleeding was
observed (Tr. 21). Plaintiff denied any pertinent medical history (Tr. 21). Examination of his
affected digit showed normal range of motion, no vascular compromise, and normal
sensation (Tr. 21). Urine drug screening was positive for both cocaine and marijuana (Tr. 21).
The ALJ noted that these records indicate that Plaintiff’s right index finger was lacerated and
also his left; therefore, it was unclear which digit was affected (Tr. 21).
In December 2008, Plaintiff presented to the emergency room with complaints of
right upper and lower extremity weakness, shaking of the right upper extremity and
confusion, of one day’s duration (Tr. 21). However, Plaintiff was alert, fully oriented, and
followed commands (Tr. 21). Upon examination, normal strength was found in all four
extremities (Tr. 21). Blood pressure was 160/115 (Tr. 21). CT scanning of the brain was
essentially normal: there was no evidence of any hemorrhage, infarct, edema, mass effect, or
midline shift (Tr. 21). Ventricles were normal in size (Tr. 21). Plaintiff was advised not to
drink, to take his blood pressure at home, and to take two baby aspirin daily (Tr. 21).
Woodrow Wilson, M.D., examined Plaintiff in July 2009 (Tr. 23, 270-73). Plaintiff
was described as alert and in no obvious distress, but was diaphoretic (Tr. 23). His blood
pressure was 124/90 (Tr. 23). Plaintiff got out of the chair without difficulty (Tr. 23). His
speech was a little slurred, and with stuttering at times (Tr. 23). On examination, his pupils
were equal, round and reactive to light (Tr. 23). Extraocular motions were intact (Tr. 23).
Hearing was noted as seeming to be okay (Tr. 23). Breath sounds were clear in all lung fields,
while heart rate was regular and rhythmic (Tr. 23). Abdomen was soft and non-tender (Tr.
23). Neck was freely mobile and non-tender (Tr. 23). Full range of motion was obtained in
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the cervical spine, except for right and left rotation, which was 60 degrees and 70 degrees,
respectively (Tr. 23). Range of motion of the thoracolumbar spine was as follows: flexion to
at least 90 degrees, with extension and lateral deviation in each direction at least 30 degrees
(Tr. 23). The only limitation in motion of the bilateral shoulders was external rotation,
which was done to 60 degrees (Tr. 23).
Plaintiff could not adduct his right 5th finger due to an old injury, but had full
abduction of all fingers, and no swelling or deformity was noted (Tr. 23). There was also full
range of motion of the bilateral elbows, wrists, hands, hips, knees, and ankles (Tr. 23).
Straight leg raising was negative (Tr. 23). However, Plaintiff held his right ankle very stiffly,
and complained of some pain in his right foot when he walked because of a cyst on the
plantar surface (Tr. 23). He also complained of some right ankle pain (Tr. 23). Plaintiff had
difficulty with tandem walk, briefly performed heel/toe walk, and balanced on each foot
independently (Tr. 23). Even though Romberg sign was negative, Plaintiff was very shaky
and tremulous and very unsteady on his feet (Tr. 23). No joint effusion, calf edema, or edema
was evident (Tr. 23). Motor strength throughout was 5/5, and deep tendon reflexes were 2+
and equal in all four extremities (Tr. 23).
Although sensation to light touch was intact, Plaintiff complained of numbness of the
1st -4th digits of the right hand (Tr. 23). Cerebellar functioning was good, but Plaintiff had an
obvious tremor, felt to be more anxiety-related (Tr. 23).
Considering all of the above findings, Dr. Wilson opined that Plaintiff could probably
lift 20-25 pounds on a fairly regular basis; stand and walk 4-6 hours each in an 8-hour
workday; and sit for 6-8 hours in an 8-hour workday, essentially concluding that Plaintiff
could perform light work (Tr. 23; see id. last paragraph). The ALJ found significant that
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Plaintiff reported having suffered a stroke in December 2008; yet, when Dr. Wilson
reviewed Plaintiff’s records, there was no mention of any cerebrovascular accident (Tr. 23).
Kanika Chaudhuri, M.D., completed a Physical Residual Functional Capacity
Assessment (“PRFCA”) in September 2009, in which she opined that Plaintiff was capable of
medium work with no postural limitations (Tr. 283-91), whereas John T. Netterville, M.D.,
completed a PRFCA in April 2010, in which he opined that Plaintiff was capable of light
work, with postural activities limited to occasional (but no balancing) (Tr. 343-51). Thus,
both Drs. Wilson and Netterville were essentially of the opinion that Plaintiff could perform
light work, whereas Dr. Chaudhuri was of the opinion that Plaintiff could perform medium
work (Tr. 23, last paragraph).
Orthopedist, J. Frederick Wade, M.D., examined Plaintiff in June 2011 for complaints
of right hand pain (Tr. 22). Plaintiff reported that he had fallen and hurt his right hand, and
his right ankle was examined as well (Tr. 22). Upon examination, there was mild bruising at
the DIP joint of the 4th digit of the right hand, with good range of motion and no instability
or malalignment (Tr. 22). The right ankle was non-tender over the proximal fibula and down
at the ankle, also without malalignment or crepitance (Tr. 22). X-rays demonstrated a healed
right upper fibula fracture, with no displacement of the mortise (Tr. 22). Dr. Wade
concluded that both these areas were stable and doing well (Tr. 22). Plaintiff was to return as
needed (Tr. 22).
Plaintiff returned the following month, with what Dr. Wade described as a difficult
history, much of it provided by Plaintiff’s mother (Tr. 22). Specifically, Plaintiff had been
involved in a motor vehicle accident in 1987, sustaining a fracture at L3 that did not require
surgery, and there was no spinal cord injury or nerve paralysis (Tr. 22). He had had chronic
6

low back pain ever since then (Tr. 22). Plaintiff’s mother went on to describe that Plaintiff
has had falls, trembling in his arms and hands, and decreased balance, which had worsened
since he fell on Mule day and fractured his ankle (Tr. 22). Plaintiff did not lose consciousness
with that fall, but has had relatively constant low back pain, not really worse with any
activity, and tingling of his legs (Tr. 22). He also has had a long history of neck pain, just
across the posterior of his neck, that had not shown any change for years (Tr. 22).
Plaintiff was described as well-nourished, well-developed, and a bit disheveled (Tr.
22). He ambulated with a slow, steady, gait (Tr. 22). Although Plaintiff did not have
hyperreflexia (upon examination), with a negative Hoffman’s sign, negative plantar Babinski
sign, and no clonus; he did have an odd intention tremor with his right hand and a tremortype motion disorder in the bilateral extremities (Tr. 22). Deep tendon reflexes were ¼
throughout (Tr. 22). Motor mass and tone were otherwise normal (Tr. 22). Thoracic and back
alignment were normal (Tr. 22). Palpitation and percussion led to subjective complaints of
pain when palpated across the cervical and lumbar regions (Tr. 22). Non-painful, full range
of motion, was obtained in the bilateral hips and knees, absent any crepitance or
malalignment (Tr. 22). Two views of the lumbar spine revealed an old L2 compression
fracture, probably no more than 20% of that superior endplate depressed; no evidence of any
pedicle widening, facet subluxation, or spondylolisthesis (Tr. 22). An MRI of the lumbar
spine showed mild old compression changes at L2; mild narrowing at L4-5 and L5-S1 with
disc desiccation; broad-based protrusion centrally and right paracentrally at L-4, with some
lateral recess stenosis and right neuroforaminal stenosis; and a broad-based protrusion
centrally and left paracentrally at L5, with at least left neuroforaminal stenosis (Tr. 22-23).

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III. Conclusions of Law
A. Standard of Review
This court reviews the final decision of the SSA to determine whether that
agency’s findings of fact are supported by substantial evidence in the record and whether the
correct legal standards were applied. Elam ex rel. Golay v. Comm’r of Soc. Sec., 348 F.3d
124, 125 (6th Cir. 2003). “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 v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th
Cir. 2007)(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994)). Even if the record contains substantial evidence that could have supported an
opposite conclusion, the SSA’s decision must stand if substantial evidence supports the
conclusion reached. E.g., Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir.
2005). Accordingly, while this court considers the record as a whole in determining whether
the SSA’s decision is substantially supported, it may not review the case de novo, resolve
conflicts in the evidence, or decide questions of credibility. See Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
B. Proceedings at the Administrative Level
The claimant has the ultimate burden to establish an entitlement to benefits
by proving his or her “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(A). The claimant’s “physical or mental impairment” must
“result[] from anatomical, physiological, or psychological abnormalities which are
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demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Id. at
§ 423(d)(3). In proceedings before the SSA, the claimant’s case is considered under a fivestep sequential evaluation process, described by the Sixth Circuit Court of Appeals as follows:
1) A claimant who is engaging in substantial gainful activity will not be found
to be disabled regardless of medical findings.
2) A claimant who does not have a severe impairment will not be found to be
disabled.
3) A finding of disability will be made without consideration of vocational
factors, if a claimant is not working and is suffering from a severe impairment
which meets the duration requirement and which meets or equals a listed
impairment in Appendix 1 to Subpart P of the Regulations. Claimants with
lesser impairments proceed to step four.
4) A claimant who can perform work that he has done in the past will not be
found to be disabled.
5) If a claimant cannot perform his past work, other factors including age,
education, past work experience and residual functional capacity must be
considered to determine if other work can be performed.
Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)(citing, e.g., Combs v. Comm’r
of Soc. Sec., 459 F.3d 640, 642-43 (6th Cir. 2006)(en banc)); 20 C.F.R. §§ 404.1520(b)-(f),
416.920 (b)-(f). “Through step four, the claimant bears the burden of proving the existence
and severity of limitations caused by her impairments and the fact that she is precluded from
performing her past relevant work, but at step five of the inquiry ... the burden shifts to the
Commissioner to identify a significant number of jobs in the economy that accommodate the
claimant's residual functional capacity (determined at step four) and vocational profile. Jones
v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003) (citing Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987)).
The SSA’s burden at the fifth step of the evaluation process can be carried by

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relying on the medical-vocational guidelines, otherwise known as “the grids,” but only if the
claimant is not significantly limited by a nonexertional impairment, and then only when the
claimant’s characteristics identically match the characteristics of the applicable grid rule. See
Wright v. Massanari, 321 F.3d 611, 615-16 (6th Cir. 2003). Otherwise, the grids cannot be
used to direct a conclusion, but only as a guide to the disability determination. Id.; see also
Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990). In such cases where the grids do not
direct a conclusion as to the claimant’s disability, the SSA must rebut the claimant’s prima

facie case by coming forward with proof of the claimant’s individual vocational qualifications
to perform specific jobs, which is typically obtained through vocational expert (“VE”)
testimony. See Wright, 321 F.3d at 616 (quoting Soc. Sec. Rul. 83-12, 1983 WL 31253, *4
(S.S.A.)); see also Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).
In determining residual functional capacity (“RFC”) for purposes of the
analysis required at steps four and five above, the SSA is required to consider the combined
effect of all the claimant’s impairments, mental and physical, exertional and nonexertional,
severe and nonsevere. See 42 U.S.C. §§ 423(d)(2)(B), (5)(B); Foster v. Bowen, 853 F.2d 483,
490 (6th Cir. 1988).
C. Plaintiff’s Statement of Errors
Plaintiff makes two arguments in seeking reversal of the ALJ’s decision: (1)
that the ALJ erred in discounting the credibility of his subjective pain complaints, and (2)
that the ALJ erred in determining that he had the RFC to perform a range of medium work,
when the medical evidence supports greater limitations, including the opinion evidence from
the consultative examiner, Dr. Wilson, and one of the two nonexamining state agency

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consultants, Dr. Netterville. As further explained below, the undersigned is persuaded by
plaintiff’s second argument, and finds a lack of substantial evidentiary support for the RFC
finding in this case.
At the outset, in support of his arguments plaintiff makes reference to a
December 2011 medical opinion from his treating physician, Dr. Mark Brewer (Tr. 440-45),
which was not included in the record before the ALJ, but was first adduced in support of
plaintiff’s request for review of the ALJ’s decision by the Appeals Council. (Docket Entry
No. 18 at 5, 8) Based on this opinion, plaintiff further appears to allege error on the part of
the Appeals Council in declining to review the ALJ’s decision. Id. at 8. However, it is the
ALJ’s decision which is the subject of review here, as hers became the “final decision of the
Commissioner of Social Security” once the Appeals Council declined review in the case. See
42 U.S.C. § 405(g). Accordingly, error on the part of the Appeals Council is not properly
alleged in this case, nor may the court properly consider evidence that was submitted for the
first time before the Appeals Council in deciding whether to affirm, modify, or reverse the
ALJ’s decision under the fourth sentence of § 405(g). See, e.g., Cline v. Comm’r of Soc. Sec.,
96 F.3d 146, 148 (6th Cir. 1996); see also Cooper v. Comm’r of Soc. Sec., 277 F.Supp.2d 748,
753-54 (E.D. Mich. 2003).
Turning to the evidence properly considered here, plaintiff contends that the
opinions of Drs. Wilson and Netterville limiting plaintiff to essentially light work, combined
with the “obvious limitations to his right wrist, right ankle, left ankle and his cervical spine,”
are sufficient to render the ALJ’s finding of his RFC for a range of medium work
unsupported. As to the opinion evidence, the ALJ found that, “given the lack of clinical

11

findings consistently found upon examination, significant weight is accorded to the opinion
of Dr. Chaudhuri, as it is more consistent with the totality evidence than the opinions of
either Dr. Netterville or Dr. Wilson.” (Tr. 23) Dr. Chaudhuri, who reviewed plaintiff’s file
and opined on September 29, 2009, that he could still perform medium work, found that Dr.
Wilson’s opinion that plaintiff was limited to light work was too restrictive in light of the
clinical findings of full range of motion of all joints without pain, and the finding of 5/5
motor strength. (Tr. 290) In response to plaintiff’s argument, defendant simply contends
that substantial evidence supports the RFC finding in this case, before proceeding to
alternatively argue that even if plaintiff could not perform medium work as opined by Dr.
Chaudhuri, the vocational expert’s testimony to the existence of available light jobs would
substantially support a modified finding that plaintiff was not disabled even if limited to light
work. Noting the statutory language empowering this Court to enter a judgment “affirming,
modifying, or reversing” the agency decision, 42 U.S.C. § 405(g), defendant argues that the
Court can modify the step four determination that plaintiff could return to his past relevant
medium work, and instead determine from the record that plaintiff is not disabled at the
fifth step of the sequential evaluation process, because his limitation to light work would be
accommodated by a significant number of light jobs existing in the economy.
However, in the absence of any alternative findings by the ALJ as to the existence of a
significant number of other jobs which plaintiff could perform, the undersigned finds that it
would be improper to modify the decision here based on the raw testimony of the vocational
expert, particularly inasmuch as the burden of proof shifts to the agency at the fifth step of
the sequential evaluation process. Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir.
2003) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)). Moreover, as plaintiff states in
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his reply brief, even the ALJ’s hypothetical questions based on the opinions of Drs. Wilson
and Netterville did not include limitations which the medical record appears to support.
In particular, plaintiff has consistently complained of tremors or shakiness in
his right hand, and problems with his ankles. (Tr. 16, 74) At his hearing before the ALJ,
plaintiff identified these impairments as the source of his alleged disability. (Tr. 460-64) At
his consultative examination on July 21, 2009, plaintiff’s primary complaints were the
shaking in his right hand and leg, and bilateral ankle pain. (Tr. 270) Dr. Wilson’s
examination results included notations that plaintiff’s gait was a “little awkward,” and that
“he was very shaky and tremulous and very unsteady on his feet.” (Tr. 272) Dr. Wilson
further noted that “he does have an obvious tremor which may be more anxiety related,” and
diagnosed “[s]haking spells probably related to his alcohol abuse.” (Tr. 273) Dr. Chaudhuri
rendered his opinion two months after Dr. Wilson’s examination of plaintiff (Tr. 290-91),
and so could not have considered any subsequent medical evidence in the record. Dr.
Netterville considered Dr. Wilson’s report of an obvious tremor, as well as examination
results from February and March 2010, before rendering his opinion in April 2010. (Tr. 35051) Dr. Netterville also made note of the May 19, 2009 Social Security Field Office report,
wherein the agency interviewer reported that plaintiff’s right hand shook constantly and he
had difficulty signing the form. (Tr. 68, 350) However, he did not assess any restrictions on
plaintiff’s ability to perform gross or fine manipulation. (Tr. 346)
One year after Dr. Netterville rendered his opinion, on April 12, 2011, plaintiff
was seen by Dr. Wade, an orthopedist, in followup for a Maisonneuve fracture of his right
ankle sustained as a result of a fall some ten days prior. (Tr. 363-66) Plaintiff had further

13

reported back pain in the wake of that fall, with x-rays revealing an old compression fracture
at L2 and degenerative disk disease at L1-2, L4-5, and L5-S1. (Tr. 407) In further followup
with Dr. Wade, plaintiff complained of both ankle and hand pain on June 7, 2011, after
another fall. (Tr. 354-55) While both of these issues were described by Dr. Wade as “stable
and doing well” (Tr. 355), plaintiff returned to his office on July 26, 2011, complaining of
back pain. (Tr. 352) During his physical examination of plaintiff, Dr. Wade noted that “he
did have an odd intention tremor with his right hand and a tremor type motion disorder in
both lower extremities. ... It was a rather gross tremor.” (Tr. 352-53) Dr. Wade diagnosed
chronic low back pain and an extrapyramidal motion disorder, and provided the following
remarks in disposition:
I am not sure what to make of all this. I am going to get a lumbar MRI to rule
out a neurological compression as any source. His physical findings and
complaints would not lead you to believe that this is purely a lumbar process.
It doesn’t classically seem to present as a cervical process either. I am going to
get the lumbar MRI and have him see neurology. ...
(Tr. 353) On August 1, 2011, plaintiff had the lumbar MRI performed, which yielded the
following findings:
There is broad-based protrusion centrally and right paracentrally of the L4
intervertebral disk with some lateral recess stenosis along with at least right
neuroforaminal stenosis. There is broad-based protrusion centrally and left
paracentrally of the L5 intervertebral disk with at least left neuroforaminal
stenosis identified.
(Tr. 356-57) This radiology report contains a handwritten note that plaintiff had a neurology
appointment scheduled, evidently on August 29, 2011, with a Dr. Chitturi. (Tr. 356) There
is no further evidence of that appointment or its results in the record; plaintiff’s hearing was
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held on August 24, 2011, five days prior to the appointment.
Although the ALJ made note of Dr. Wade’s most recent findings and the
lumbar MRI results (Tr. 22-23), she did so before discussing the findings and assessment of
Dr. Wilson which were rendered two years earlier. The ALJ gave greatest weight to the
opinion of nonexamining consultant Dr. Chaudhuri, also rendered in 2009 and based largely
upon the examination results obtained by Dr. Wilson, though it rejected the latter’s
assessment as overly restrictive. (Tr. 290) Dr. Chaudhuri was of course unable to consider
the 2011 lumbar MRI results or the examination results and diagnoses from the treating
specialist, Dr. Wade. The Sixth Circuit has recently held that “[w]here the non-examining
source did not review a complete case record, ‘we require some indication that the ALJ at
least considered these facts before giving greater weight to an opinion’ from a nonexamining source.” Miller v. Comm’r of Soc. Sec., --- F.3d ----, 2016 WL 362423, at *5 (6th
Cir. 2016) (quoting Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009)). Here,
the ALJ appears to have discounted entirely the significance of the lumbar MRI findings,
focusing instead upon treatment notes through February 2011 which indicated no
abnormality with any body system. (Tr. 21-22) However, even during visits where
examination results were otherwise normal according to the checkbox treatment note,
ataxia2 or tremors were noted. (Tr. 411-12, 419)

2

“Ataxia describes a lack of muscle control during voluntary movements, such as walking or
picking up objects. A sign of an underlying condition, ataxia can affect movement, speech, eye
movement and swallowing. Persistent ataxia usually results from damage to your cerebellum – the
part of your brain that controls muscle coordination. Many conditions can cause ataxia, including
alcohol abuse, stroke, tumor, cerebral palsy and multiple sclerosis.”
http://www.mayoclinic.org/diseases-conditions/ataxia/basics/definition/con-20030428

15

In reviewing evidence of a February 2010 hospitalization, the ALJ noted that
“[i]t was significant that the claimant was also diagnosed with mild alcoholic DTs.”3 (Tr. 21)
Dr. Wilson also referred to “shaking spells” that he thought attributable to alcohol abuse.
(Tr. 273) It may well be that plaintiff’s right hand tremors are the result of his alcohol abuse.
But the ALJ’s disability determination must, in the first instance, consider even those
limitations which are attributable to substance abuse. 20 C.F.R. § 404.1535. The ALJ
recognized this requirement, finding that with his “physical impairments, coupled with this
use, the claimant is still not disabled,” though she also found the credibility of his testimony
to be reduced by his alcohol use. (Tr. 24) Regardless, it can be argued that the ALJ dismissed
this symptom as not posing any significant work-related limitation based on the consultative
and nonexamining physicians’ lack of regard for it in rendering their assessments. However,
in light of the development of the medical record since those physicians opined -specifically, the motion disorder and gross tremor observed by Dr. Wade in plaintiff’s right
hand and both lower extremities, as well as the complaints of back pain and the lumbar MRI
results obtained in 2011 -- the undersigned finds that the ALJ’s reliance upon these 2009
examinations and assessments en route to her finding of no disability at any time prior to
October 6, 2011, is not substantially supported. Moreoever, the ALJ’s finding that there is no
evidence “that even suggests” an impairment that would result in the difficulties with
holding items, writing, lifting, standing, and walking which plaintiff testified to (Tr. 24), is
incongruous with this more recent evidence from Dr. Wade, which could be viewed as

3

Delirium tremens, or DTs, are a severe form of alcohol withdrawal that can manifest as
tremors, and that may be caused by abstaining from alcohol after a period of heavy drinking, or by
head injury, infection, or illness in people with a history of heavy alcohol use.
https://www.nlm.nih.gov/medlineplus/ency/article/000766.htm

16

bearing out Dr. Wilson’s observations of plaintiff’s right hand tremor, awkward gait, and
shaky, tremulous, and unsteady bearing on his feet. (Tr. 272)
This matter should be remanded to the agency for rehearing upon an updated
medical record, and the issuance of a new decision.

IV. Recommendation
In light of the foregoing, the Magistrate Judge recommends that plaintiff’s
motion for judgment on the administrative record be GRANTED and that the decision of the
SSA be REVERSED and the cause REMANDED for further administrative proceedings
consistent with this Report.
Any party has fourteen (14) days from receipt of this Report and
Recommendation in which to file any written objections to it with the District Court. Any
party opposing said objections shall have fourteen (14) days from receipt of any objections
filed in which to file any responses to said objections. Failure to file specific objections
within fourteen (14) days of receipt of this Report and Recommendation can constitute a
waiver of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 (1985);
Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004)(en banc).

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ENTERED this 1st day of April, 2016.
s/ John S. Bryant
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE

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