United States District Court, N.D. Ohio, Eastern Division
S. GWIN JUDGE.
REPORT AND RECOMMENDATION
Jonathan D. Greenberg United States Magistrate Judge.
Robert Sutton (“Plaintiff” or “
Sutton”), challenges the final decision of Defendant,
Nancy A. Berryhill,  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
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,
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.)
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 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
(Doc. No. 12.)
Personal and Vocational Evidence
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.)
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.
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.)
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.)
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.)
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.)
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.)
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
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.
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.)
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.)
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.)
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.)
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
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.
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.)
attended physical therapy for several weeks. (Tr. 711, 724,
751.) He had improved steadiness and reduced deficits with
his cane. (Tr. 724.)
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.)
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.
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.
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
• 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
• He will need to have periods of walking around during
• 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.
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.)
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.)
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
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.)
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.
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.)
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.)
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.)
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.
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.)
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.
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.)
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.)
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.)
State Agency Reports
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.)
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.)
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.
• 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 ...