United States District Court, S.D. Ohio, Eastern Division
DALE L. SPENCER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
James L. Graham
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE
Dale L. Spencer, brings this action under 42 U.S.C. §
405(g) for review of a final decision of the Commissioner of
Social Security (“Commissioner”) denying his
application for disability insurance benefits
(“DIB”), a period of disability, and Supplemental
Security Income (“SSI”). For the reasons that
follow, it is RECOMMENDED that the Court
REVERSE the Commissioner's nondisability
finding and REMAND this case to the
Commissioner and Administrative Law Judge (“ALJ”)
under Sentence Four of § 405(g).
applied for DIB, a period of disability, and SSI on December
26, 2012, alleging disability beginning August 13, 2012, due
to numerous physical and mental impairments. (Tr. 129-35). An
Administrative Law Judge (the “ALJ”) held a
hearing (Tr. 598-631) after Plaintiff's application was
denied initially (Tr. 84-86) and upon reconsideration (Tr.
92-93). On March 7, 2016, the ALJ denied benefits in a
written decision. (Tr. 15-23). That decision became final
when the Appeals Council denied review on January 19, 2017.
filed this case on March 15, 2017 (Doc. 1), and the
Commissioner filed the administrative record manually on May
23, 2017 (Doc. 11). Plaintiff filed a Statement of Specific
Errors on July 7, 2017 (Doc. 12), the Commissioner responded
on August 14, 2017 (Doc. 13), and Plaintiff replied on August
28, 2017 (Doc. 14).
Relevant Medical Records
medical records relevant to Plaintiff's right foot
problem show he had a diagnosis of hallux rigidus, associated
pain, and an antalgic gait. (See, e.g., Tr. 304-305,
485, 486, 503, 539, 568-69, 586). They likewise reflect that
Plaintiff suffers a decreased range of motion due to his
arthritic joint. (Id.). In 2015, Plaintiff underwent
cheilectomy to address his hallux rigidus. (Tr. 462, 547).
Plaintiff described “sitting around a lot”
following the surgery because of the pain caused by putting
weight on his right foot. (Tr. 509).
considering only Plaintiff's spine disorders and not his
right foot disorder of hallux rigidus, state agency
consultant Gary Hinzman, M.D. opined on January 30, 2015,
that Plaintiff could perform light work with limitations.
(Tr. 58-66). State agency consultant Frank Stroebel, M.D.
concurred with Dr. Hinzman's opinion on May 7, 2013, but
also considered only Plaintiff's spine disorders and not
his right foot disorder of hallux rigidus. (Tr. 68-76).
Relevant Hearing Testimony
counsel indicated that Plaintiff's “two major
issues” are “low back problems” and
“a problem with his right foot.” (Tr. 600-601).
Plaintiff indicated that the surgery on his right foot eased
the pain but did not restore his mobility. (Tr. 626-27).
Plaintiff testified that, on a normal day, he spends at most
two to three hours on his feet, standing or walking. (Tr.
617). Plaintiff's activity includes doing housework,
getting dressed, and grooming himself “in
intervals” (Tr. 617, 621), watching football, and
playing cards. (Tr. 618). He is able to do some grocery
shopping and, with difficulty, can lift a gallon of milk or a
ten-pound bag of potatoes. (Tr. 624). Plaintiff can drive a
car for a short period of time. (Tr. 625).
Vocational Expert testified, inter alia, that an
individual of Plaintiff's age, education, work experience
limited to standing and walking a maximum of three hours in
an eight-hour workday, lifting a maximum of ten pounds
occasionally and five pounds frequently would be limited to
sedentary work. (Tr. 629).