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Sutton v. Berryhill

United States District Court, N.D. Ohio, Eastern Division

December 8, 2017

ROBERT SUTTON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          JAMES S. GWIN JUDGE.

          REPORT AND RECOMMENDATION

          Jonathan D. Greenberg United States Magistrate Judge.

         Plaintiff, Robert Sutton (“Plaintiff” or “ Sutton”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying his applications for Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be VACATED and the case REMANDED for further proceedings consistent with this decision.

         I. PROCEDURAL HISTORY

         In December 2012, Sutton filed applications for POD, DIB, and SSI, alleging a disability onset date of July 13, 2012 and claiming he was disabled due to diabetes, right foot toe amputations, and poor vision. (Transcript (“Tr.”) 12, 247.) The applications were denied initially and upon reconsideration, and Sutton requested a hearing before an administrative law judge (“ALJ”). (Tr. 141, 155, 167.)

         On June 10, 2015, an ALJ held a hearing, during which Sutton, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 29-63.) On September 25, 2015, the ALJ issued a written decision finding Sutton was not disabled. (Tr. 12-28.) The ALJ's decision became final on December 7, 2016, when the Appeals Council declined further review. (Tr. 1-4.)

         On February 5, 2017, Sutton filed his Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 12 & 13.) Sutton asserts the following assignments of error:

(1) The ALJ failed to provide adequate analysis of Sutton's impairments under Listing Sections 1.02, 1.05, 9.00, and 11.14.
(2) The ALJ erred at Step Five[2] of the sequential evaluation, in concluding Sutton is capable of a light work. This finding is in error because the ALJ did not properly consider the opinion of Sutton's treating physician, failed to perform an acceptable credibility evaluation, and failed to consider the claimant's need for a cane and well-established upper extremity limitations.

(Doc. No. 12.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Sutton was born in June 1969 and was 43 years-old at the time of the alleged onset date, and 45 years old at the time of his administrative hearing, making him a “younger” person under social security regulations. (Tr. 21.) See 20 C.F.R. §§ 404.1563(c) & 416.963(c). He has a limited education and is able to communicate in English. (Tr. 21.) He has past relevant work as a landscape laborer (D.O.T. #408.687-014), a commercial cleaner (D.O.T. #381.687-014), a warehouse-material handler (D.O.T. #929.687-030), an appliance delivery person (D.O.T. #905.687-010), and a production assembler (D.O.T. #706.684-018). (Id.)

         B. Medical Evidence

         As Sutton's grounds for relief relate to his diabetes-related complications, the Court's recitation of the medical evidence will be limited to those impairments, with particular emphasis on Sutton's complaints regarding pain, numbness, and tingling in his hands, as well as his need for a cane for ambulation.[3]

         Sutton has a long, well-established history of diabetes, which has lead to several physical complications. (Tr 701.) In August 2011, prior to the alleged onset date, he was hospitalized for diabetic ketoacidosis. (Tr. 320.) At that time, Sutton underwent surgical incision and drainage, as well as debridement, of a diabetic foot ulcer on his right foot. (Tr. 311.) During this procedure, surgeons removed a portion of his fifth toe on his right foot. (Tr. 701.)

         Sutton thereafter followed up with his primary care doctor, Stephen P. Hayden, M.D., on September 21, 2011. Dr. Hayden noted Sutton had poorly controlled diabetes, and was not receiving regular care. (Tr. 387.) He encouraged Sutton to follow up with a podiatrist and endocrinologist. (Id.)

         Sutton established at an endocrinology clinic on October 1, 2011. (Tr. 393.) His surgical wound was progressing well, and he was taking his diabetes medications. (Tr. 402.) He presented to podiatrist, Patrick McKee, DPM, on January 27, 2012. (Tr. 439.) Dr. McKee noted some of the skin had peeled off Sutton's right foot, as his shoes were not fitting properly. (Id.) Sutton indicated to Dr. McKee he was recently approved for a diabetic shoe, and it was coming in the next few days. (Id.) Sutton also had a new abrasion on his foot, but his partial fifth toe amputation had healed. (Tr. 440.)

         On April 19, 2013, Sutton established with a new primary care doctor, Judith Weiss, M.D. (Tr. 542.) Dr. Weiss noted Sutton's diabetes was under poor control. (Id.) Sutton also had a gait disturbance, and could not feet the distal toes in either foot. (Id.) On examination, Sutton had a skin graft where his amputation had occurred. (Tr. 544.) Both of his feet had callus at the first metatarsal head plantar surface. (Id.) He had normal pulses bilaterally in both feet, but reduced sensation in both great toes, the 2nd toes, and the first metatarsal head. (Id.) Dr. Weiss told Sutton he needed to wear diabetic shoes, and referred him to a podiatrist. (Tr. 545.)

         On August 22, 2013, Sutton had an x-ray of his right foot. (Tr. 683.) Beyond his amputation, there were some degenerative changes in the remaining toes and midfoot, and some soft tissue swelling in the forefoot. (Id.)

         Sutton then established with neurologist Marc Winkelman, M.D., on October 10, 2013. (Tr. 674.) Sutton indicated he had felt off balance since his 2011 amputation, and his feet were numb. (Id.) He further indicated his hands felt “ok.” (Id.) On examination, Sutton had good motor tone, but decreased strength in his lower extremities. (Tr. 677.) His sensation was reduced below his knees, and his vibratory sensation was reduced in his fingers and toes. (Id.) His coordination was satisfactory, but his gait was wide-based and he was unable to tandem walk. (Id.) Dr. Winkelman felt these findings were consistent with chronic sensorimotor polyneuropathy and sensory ataxia. (Id.) He ordered an EMG and some labwork. (Id.)

         A November 5, 2013 EMG of Sutton's right arm and right leg revealed peripheral sensorimotor polyneuropathy, severe in degree, with evidence of ongoing or recent denervation. (Tr. 664.) The findings were suggestive of right S1 and S2 radiculopathy. (Id.) The interpreting physician noted the EMG could not distinguish between ‘garden variety' radiculopathy and diabetic polyradiculopathy. (Id.)

         Sutton returned to Dr. Winkelman's office on November 19, 2013. (Tr. 650.) He indicated he recently felt off balance while carrying furniture. (Id.) He also relayed that two of his fingers on each hand had been feeling tingly for the past two weeks. (Id.) On examination, Sutton again had a wide-based gait, and could not tandem walk. (Tr. 628.) Dr. Winkelman reviewed the EMG, noting it revealed severe axonal peripheral neuropathy and a possible right S1 root lesion. (Id.) The doctor then ordered a lumbar MRI and a course of physical therapy. (Id.)

         Sutton followed up with Dr. Weiss on December 5, 2013. (Tr. 639.) Dr. Weiss noted Sutton had neuropathy, as well as some pain with ambulation. (Tr. 640.) Right knee x-rays revealed a moderate degree of degenerative arthropathy and small volume knee joint effusion. (Tr. 649.) There was no acute osseous or articular abnormality. (Id.)

         On January 30, 2014, Sutton had his first visit at the Department of Physical Medicine and Rehabilitation at MetroHealth. (Tr. 681.) He indicated numbness and tingling in the last two fingers of each hand for the past six months. (Id.). He also described intermittent pain in his hands. (Id.) As for his feet, Sutton reported numbness in both feet, poor balance, and stumbling. (Id.) He denied any falls. (Id.) He also denied use of a cane or walker. (Id.)

         On examination, Sutton had negative Tinel's signs at his wrists and elbows. (Tr. 685.) His back range of motion was mildly decreased, with no trigger points or tenderness. (Id.) His straight leg raises were negative bilaterally. (Id.) Sutton had reduced sensation below his knees, in his toes, and his fingers; normal motor strength in his arms and legs; and normal fine motor coordination. (Id.) He had difficulty walking in a straight line, and difficulty with a single leg stance. (Id.) The examining doctor, Antwon Morton, D.O., referred him for physical therapy. (Tr. 686.)

         Sutton returned to Dr. Winkelman's office on February 3, 2014. (Tr. 691.) He indicated no change in his balance and feet, and again relayed that his 4th and 5th fingers were numb bilaterally. (Id.) On examination, Sutton had decreased 4/5 strength in his upper extremities, and reduced sensation in the 4th and 5th fingers of each hand. (Tr. 693.) His gait was “ok.” (Id.)

         Dr. Winkelman felt this examination was suggestive of bilateral ulnar mononeuropathy, in addition to polyneuropathy. (Id.) He ordered an EMG of both arms, a lumbar MRI, and encouraged Sutton to begin physical therapy. (Id.) A February 3, 2014 lumbar MRI revealed moderate facet arthropathy, with a disc protrusion at ¶ 4-5 and L5-S1. (Tr. 698.) There was no significant nerve compression. (Id.) An EMG of Sutton's right arm revealed peripheral sensorimotor polyneuropathy, and possible mild cervical radiculopathy. (Tr. 807.) There was no clear cut evidence of superimposed right cervical radiculopathy. (Id.)

         Sutton began a course of physical therapy on February 5, 2014. (Tr. 701.) He denied use of an assistive device to ambulate. (Id.) On examination, Sutton had decreased sensation in his feet and lower legs, from midway on his shin to his toes. (Tr. 703.) He also had a chronic, slow-healing ulcer on his right foot. (Id.) Sutton admitted he had not been wearing his diabetic shoes, because they had worn down. (Id.) He had decreased strength in both legs, with an antalgic gait. (Tr. 704, 705.) The physical therapist, Maureen Farrell, PT, noted he was occasionally unsteady, and issued him a cane for ambulation. (Tr. 705.)

         Sutton attended physical therapy for several weeks. (Tr. 711, 724, 751.) He had improved steadiness and reduced deficits with his cane. (Tr. 724.)

         On February 24, 2014, Sutton visited the diabetic foot clinic at MetroHealth. (Tr. 774.) The treating nurse practitioner, Denise Forster-Paulsen, C.N.P., noted his skin graft from 2011 had “come off” in June 2013. (Id.) Sutton had a large amount of callus on his right 4th toe, so the nurse practitioner debrided this area. (Tr. 776.) Ms. Forster-Paulsen encouraged Sutton to wear diabetic shoes, and to stay off of his feet until this area healed. (Tr. 776, 779.) As a result, Sutton had to discontinue physical therapy. (Tr. 794.) X-rays indicated no osteomyelitis in his right foot. (Tr. 803.)

         Sutton returned to the Department of Physical Medicine and Rehabilitation at MetroHealth on March 31, 2014. (Tr. 832.) He indicated he was still having constant numbness in the 4th and 5th fingers on each hand. (Id.) He was using a cane, and denied any falls. (Id.) On examination, Sutton had decreased sensation in his feet and fingers. (Tr. 837.) His motor strength was normal, and his fine motor coordination was also normal. (Id.) He had difficulty walking in a straight line. (Id.)

         Sutton visited Dr. Weiss on April 2, 2014. (Tr. 842). Dr. Weiss noted his diabetes was under much better control. (Id.) Sutton's muscular strength was intact, but he was unable to stand with eyes closed without falling backwards. (Tr. 845.) Sutton saw Dr. Winkelman on April 11, 2014. (Tr. 857.) He reported intermittent sharp pains in his hands, so Dr. Winkelman ordered an EMG of the left arm. (Tr. 857, 858.) The May 19, 2014 EMG revealed left ulnar mononeuropathy, and superimposed peripheral neuropathy. (Tr. 899.)

         On May 9, 2014, Sutton visited Dr. Winkelman's office in order to have a form filled out regarding his condition. (Tr. 887.) Dr. Winkelman had a 15-minute conversation with Sutton before filling out the form. (Id.) Following this visit, Dr. Winkelman filled out a form prepared by Sutton's counsel, which offered the following limitations/observations:

• Sutton has polyneuropathy and ulnar mononeuropathy, which is constant, in both hands, and severe;
• He can walk less than one city block, sit for 15 minutes at a time, and stand for 5 minutes at a time;
• He can stand/walk for less than 2 hours total, and sit for about 4 hours total in an 8-hour workday;
• He would need a job that permits shifting positions at will;
• He will need to have periods of walking around during the workday;
• He will need to walk around every 15 minutes, for 3 minutes at a time;
• He will need to take 2-3 unscheduled breaks a day, lasting 20-30 minutes;
• He needs to use an assistive device, but does not need to elevate legs with prolonged sitting;
• He can rarely lift less than 10 pounds, and cannot lift any more than 10 pounds;
• He can rarely twist, climb stairs, climb ladders, and never stoop or squat;
• He has significant limits in reaching, handling, and fingering, noting “his hands are weak and numb and for those reasons they lack dexterity and strength;”
• He will be off task more than 25% of the workday, is capable of moderate stress, and would likely miss work more than 4 days a month due to his impairment.

(Tr. 883-886.)

         Sutton also visited the diabetic foot clinic several times during May 2014. (Tr. 867, 939.) He continued to ambulate on his feet, and, therefore, his ulcer did not improve, resulting in additional debridement. (Tr. 869, 939.) On May 22, 2014, he had developed a new ulcer. (Tr. 939.) He indicated this was likely due to wearing his diabetic shoes too tight. (Id.) The nurse practitioner at the clinic, Ms. Forster-Paulsen, dressed both wounds, and again told him to stay off his feet. (Id.) Both of his ulcers had healed by June 12, 2014. (Tr. 959.) However, he was still developing callus where the ulcers had been. (Id.) He was then fitted for new diabetic shoes, and indicated they were comfortable. (Id.)

         On June 16, 2014, Sutton visited orthopedist Jonathan Streit, M.D., for his hand symptoms. (Tr. 964.) He reported numbness in his hands, but denied any weakness. (Id.) On examination, he had 4/5 strength in his fingers, and 5/5 strength in the remainder of his upper extremities. (Tr. 966.) He was stable with the use of a cane. (Id.) Bilateral x-rays of the hands demonstrated no abnormality. (Id.) Dr. Streit scheduled Sutton for a left ulnar nerve decompression, with a possible right ulnar nerve decompression in the future. (Id.)

         Sutton returned to Dr. Winkelman's office on June 20, 2014. (Tr. 973.) He had a wide-based gait and was unable to tandem walk. (Tr. 975.) Dr. Winkelman agreed Sutton needed bilateral ulnar surgery. (Id.) Sutton underwent a left ulnar nerve decompression in September 2014. (Tr. 1069.) Post-operatively, Sutton did well. (Id.) On September 15, 2014, his ulnar nerve parethesias was improving. (Id.)

         On September 25, 2014, Sutton visited Dr. Weiss, reporting bilateral knee pain with some gait issues. (Tr. 1049.) Updated x-rays revealed bilateral patellofemoral osteoarthritis changes, but otherwise, the joint spaces were maintained. (Tr. 1067.) There was no large effusion. (Id.) Sutton resumed physical therapy shortly after. (Tr. 1014.) During his initial therapy session, Sutton had an antalgic, slow gait, but was independent with his cane. (Tr. 1015.) He relayed he was using the cane to ambulate for both community and household distances. (Tr. 1029.)

         Sutton's right foot ulcer recurred in October 2014. (Tr. 1041.) He visited the diabetic foot clinic on October 15, 2014 to have this ulcer debrided and his dressings changed. (Id.) He was wearing his diabetic shoes with inserts. (Id.) Sutton returned on December 3, 2014, and admitted he had been ambulating more than normal. (Tr. 1166.) He continued to have an ulcer on his 4th toe on his right foot, but there were no signs of infection. (Tr. 1169.)

         Sutton followed up at the diabetic foot clinic in January and February 2015. (Tr. 1153, 1144.) He continued to have an ulcer on his right foot, but he also continued to ambulate on this foot. (Id.) On March 18, 2015, Dr. Weiss noted Sutton's ulcer had developed some necrotic black tissue, which needed aggressive debridement. (Tr. 1124.) Sutton visited the diabetic foot clinic the next day for treatment. (Tr. 1114.) The wound had become larger, and required evaluation for osteomyelitis. (Id.)

         Sutton subsequently was hospitalized from March 24 through March 30, 2015 for fourth metatarsal osteomyelitis. (Tr. 1303, 1304.) On March 28, 2015, he underwent a right transmetatarsal amputation and tendo-Achilles lengthening. (Tr. 1227.) Upon follow-up on April 7, 2015, he indicated he was doing well, and his pain was well-controlled. (Id.) He was keeping his leg elevated as instructed. (Id.)

         Sutton then had multiple post-op visits to monitor the healing of his amputation site. (Tr. 1235, 1247.) On April 21, 2015, he had three areas of dehiscence on his foot. (Tr. 1236.) Due to his slow healing course, Sutton underwent a wound closure and implantation of osteoset vanco impregnated beads on May 8, 2015. (Tr. 1253.) On May 14, 2015, he indicated he was doing well, and his podiatrist, Stella Chlunda, DPM, also noted he was progressing well. (Tr. 1253, 1254.)

         His right foot amputation site continued to close up and heal. (Tr. 1259, 1264.) His doctor ordered him new diabetic shoes on May 20, 2015. (Tr. 1265.) On May 28, 2015, he indicated he was still doing well and currently using crutches. (Tr. 1270.)

         On May 29, 2015, Sutton returned to Dr. Winkelman's office. (Tr. 1352.) He indicated he had undergone his left ulnar operation, but had not undergone it for his right side. (Id.) He reported his right arm symptoms were unchanged, as were his left. (Id.) He also indicated his left foot felt the same, and informed Dr. Winkelman about his recent right toe amputation. (Id.) On examination, his muscle tone was “ok” and his sensation below his knees and in his 4th and 5th fingers on each hand continued to be reduced. (Tr. 1353.) He was ambulating with a cane. (Id.) Dr. Winkleman assessed both Sutton's diabetic polyneuropathy and bilateral ulnar neuropathy to be stable, and referred him to an orthopedist to have a consultation for a right sided ulnar nerve decompression. (Tr. 1354.)

         Sutton returned to physical therapy in June 2015 for bilateral knee pain. (Tr. 1354.) He had decreased balance and a disturbed gait during sessions. (Tr. 1350.) He did not report any changes or improvements from therapy after a few visits. (Tr. 1341.)

         In addition to his hand and feet issues, Sutton developed visual issues due to his diabetes. Sutton visited the Retina Associates of Cleveland in March 2012. (Tr. 488.) The physician, Llewelyn Rao, M.D., diagnosed him with diabetic macular edema in both eyes. (Id.) Dr. Rao filled out a form for Sutton, indicating a best corrected vision of 20/40 on the right and 20/30 on the left. (Tr. 474.)

         On July 12, 2012, Sutton visited the Cleveland Eye and Laser Surgery Center, and underwent a procedure for proliferative diabetic retinopathy, with a retinal detachment in the right eye. (Tr. 483.) Sutton thereafter underwent a visual consultative examination with Stuart Terman, M.D., on August 8, 2013. (Tr. 596.) Dr. Terman found Sutton had proliferative diabetic retinopathy and macular deterioration in both eyes. (Id.) Dr. Terman opined Sutton was able to read larger print, but would have difficulty with street signs. (Id.). He further opined Sutton needed to exercise great caution or avoid work at heights, and should avoid hazardous situations. (Id.)

         Sutton also visited Sunil Srivastava, M.D., an ophthalmologist, on November 13, 2013. (Tr. 658.) Dr. Srivastava noted he had developed early cataracts, and probable macular ischemia. (Tr. 659.) The doctor told Sutton they would simply observe these conditions for now. (Id.) Vision testing indicated Sutton had best corrected vision of 20/100 on the right, and 20/60 on the left. (Tr. 660.)

         C. State Agency Reports

         On August 22, 2013, state agency physician Paul Morton, M.D., reviewed Sutton's records and completed a physical residual functional capacity (“RFC”) assessment. Dr. Morton determined Sutton could occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds; stand and/or walk for a total of 2 hours in an 8-hour workday; and sit for a total of 6 hours in an 8-hour workday. (Tr. 90.) He further found Sutton had an unlimited capacity to push and/or pull, other than shown for lifting and carrying. (Id.) Dr. Morton opined Sutton could occasionally climb ramps and stairs, never climb ladders, ropes, or scaffolds, and occasionally balance, stoop, kneel, crouch, and crawl. (Tr. 90-91.) Dr. Morton found no manipulative limitations, but did find visual limits. He determined Sutton could read ordinary print but would not be able to read some fine print; and was restricted from hazardous environments but would be able to navigate the hazards of the ordinary workplace. (Tr. 91.) Dr. Morton concluded Sutton should avoid hazardous heights and machinery, due to visual impairment, and was restricted from commercial driving. (Tr. 92.)

         On March 1, 2014, state agency physician Jan Gorniak, D.O, reviewed Sutton's records and completed a Physical RFC assessment. (Tr. 111 - 124.) Dr. Gorniak affirmed the findings of Dr. Morton. (Id.)

         D. Hearing Testimony

         During the June 6, 2015 hearing, Sutton testified to the following:

• He attended high school through the 11th grade, and did not obtain a GED. (Tr. 34.) He does not drive, but is able to use public transportation. (Tr. 44.) He lives on his own in an apartment. (Tr. 50.) He can prepare light meals, and perform his own bathing, dressing, and feeding. (Tr. 51.) His sister and mother assist him with grocery shopping and housework. (Id.)
• He recently had a toe amputated from his right foot, and now no longer has any toes on his right foot. (Tr. 44.) He indicated he does not drive due to issues with his right foot. (Tr. 44.) He has been ambulating with a cane since 2012 due to balance issues. (Tr. 42.) He can stand for 30-35 minutes total in an 8-hour workday, at the most, with his cane. He cannot stand for six hours in an eight-hour workday with his cane. (Tr. 45.) His ability to stand and walk has worsened since his recent amputation. (Id.) He had been fitted for a special kind of shoe for ambulation, but had not received it yet. (Tr. 54.)
• Sitting is also an issue for him. He stated his knees hurt when he sits for longer than 15 minutes at a time. (Tr. 46.) He is most comfortable sitting with his legs elevated. (Id.)
• Sutton has issues with his hands. (Id.) He stated he has cramping, numbness, and pain in both his hands. (Tr. 47.) He has trouble picking up small objects and zipping clothing. (Id.) He indicated he could not perform the handling ...

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