United States District Court, N.D. Ohio, Eastern Division
Y. PEARSON, JUDGE
REPORT AND RECOMMENDATION
M. Parker, United States Magistrate Judge
Valerie Barton, seeks judicial review of the final decision
of the Commissioner of Social Security denying her
application for supplemental security income
(“SSI”) under Titles II and XVI of the Social
Security Act. This matter is before the court pursuant to 42
U.S.C. §1383(c)(3), 42 U.S.C. §405(g), and Local
a portion of the Commissioner's decision is not based on
substantial evidence I recommend that the final decision of
the Commissioner be VACATED and the matter
be REMANDED for further limited proceedings
as described below.
applied for SSI on January 25, 2013, alleging a disability
onset date of January 1, 2010. (Tr. 17) Barton alleged
disability based on lower back pain, mental issues, and
hepatitis C. (Tr. 122) Barton's application was denied.
(Tr. 17) Administrative Law Judge Traci M. Hixon
(“ALJ”) heard the matter on August 17, 2015. (Tr.
17) On December 24, 2015, the ALJ denied Barton's claim.
(Tr. 17-32) The Appeals Council denied review of that
decision on November 15, 2016, rendering the ALJ's
decision the final decision of the Commissioner. (Tr. 1-3)
Standard for Disability
the Act, 42 U.S.C. § 423(a), eligibility for benefit
payments depends on the existence of a disability.
“Disability” is defined as the “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).
[A]n individual shall be determined to be under a disability
only if his physical or mental impairment or impairments are
of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial
gainful work which exists in the national
42 U.S.C. § 423(d)(2)(A).
making a determination as to disability under this
definition, an ALJ is required to follow a five-step
sequential analysis set out in agency regulations. The five
steps can be summarized as follows:
1. If the claimant is doing substantial gainful activity, he
is not disabled.
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be
3. If claimant is not doing substantial gainful activity, is
suffering from a severe impairment that has lasted or is
expected to last for a continuous period of at least twelve
months, and his impairment meets or equals a listed
impairment, claimant is presumed disabled without further
4. If the impairment does not meet or equal a listed
impairment, the ALJ must assess the claimant's residual
functional capacity and use it to determine if claimant's
impairment prevents him from doing past relevant work. If
claimant's impairment does not prevent him from doing his
past relevant work, he is not disabled.
5. If claimant is unable to perform past relevant work, he is
not disabled if, based on his vocational factors and residual
functional capacity, he is capable of performing other work
that exists in significant numbers in the national economy.
20 C.F.R. §§ 404.1520, 416.920; Bowen v.
Yuckert, 482 U.S. 137, 140-142 (1987). Under this
sequential analysis, the claimant has the burden of proof at
Steps One through Four. Walters v. Comm'r of Soc.
Sec. 127 F.3d 525, 529 (6th Cir. 1997). The burden
shifts to the Commissioner at Step Five to establish whether
the claimant has the RFC and vocational factors to perform
work available in the national economy. Id.
The ALJ's Decision
The ALJ issued a decision on December 24, 2015. Her findings
can be summarized as follows:
1. Barton has not engaged in substantial gainful activity
since January 25, 2013, the application date. (Tr. 19)
2. Barton has the following severe impairments: degenerative
disc disease of the lumbar spine, degenerative joint disease
of the knees, hepatitis C, mood disorder, post-traumatic
stress disorder, panic disorder, and polysubstance abuse in
reported remission. (Tr. 19)
3. Barton does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments. (Tr. 20)
4. Barton has the residual functional capacity
(“RFC”) to perform less than the full range of
light work except she can lift and carry 20 pounds
occasionally and 10 pounds frequently; stand and walk for six
hours of an eight-hour workday and sit for six hours of an
eight-hour workday with a sit/stand option every hour for
about 5 minutes, not leaving the workstation; perform
occasional climbing of ramps and stairs, but never ladders,
ropes, or scaffolds; perform occasional balancing, stooping,
and crouching; but cannot kneel or crawl; reach in all
directions; handle, finger, and feel; perform simple, routine
tasks with simple, short instructions; make simple decisions
and have few workplace changes; have superficial interaction
with co-workers, supervisors, and the public; cannot be
exposed to unprotected heights and moving machinery, work in
a fast pace production quota environment, engage in
negotiation or confrontation. (Tr. 22)
5. Barton is unable to perform any past relevant work. (Tr.
6. Barton was born on July 17, 1963, and was 49 years old,
which is defined as a younger individual age 18-49, on the
date the application was filed, and has subsequently changed
age category to closely approaching the advanced age. (Tr.
7. Barton has at least a high school education and is able to
communicate in English. (Tr. 31)
8. 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 Barton is “not disabled, ” whether or
not Barton has transferable job skills. (Tr. 31)
9. Considering Barton's age, education, and work
experience, and RFC, there are jobs that exist in significant
numbers in the national economy that the claimant can
perform. (Tr. 31)
on these findings, the ALJ determined that Barton had not
been under a disability since January 25, 2013 through the
date of the decision. (Tr. 32)
challenges this decision, claiming that the ALJ failed to
accord appropriate weight to the medical opinions of both the
treating physician and the treating psychiatrist and the
non-treating consultative examiner. ECF Doc. 12, Page ID#
1272. She also contends that the ALJ's RFC finding was
not supported by substantial evidence, in part because the
ALJ incorrectly decided that there was no medical necessity
for Barton to use a cane which had been prescribed.
Id. at 1277. Barton further argues that the ALJ
should have found her “disabled” under Rule
201.14 of the Medical-Vocational Guidelines. The Commissioner
argues that the medical opinions and records support the
ALJ's decision, that Barton did not challenge the
ALJ's findings that her allegations were not credible,
and that substantial evidence supports the ALJ's RFC
Personal, Educational, and Vocational Evidence
was born on July 17, 1963 and was 49 years old at the time
the application was filed. (Tr. 16) Barton turned 50 before
the ALJ's decision was issued. Id. Barton
completed the eleventh grade and later obtained a GED. (Tr.
42) Barton was self-employed in 2010, working at her home as
a childcare provider. (Tr. 47-48) Barton alleged that she
further injured her lower back in a fall on January 22, 2015.
Medical Evidence Pertaining to Neck and Back
imaging of Barton's left hip and lumbar spine performed
in 2009 showed that Barton had a mild degenerative
anterolisthesis of L5 upon S1 and some associated facet
arthropathy. (Tr. 330) On November 29, 2012, Dr. Rodrigo
Cordero evaluated Barton for low back pain at the Cleveland
Clinic Foundation's Pain Management Center. (Tr. 253)
Barton reported that her pain began 3-4 years earlier, with
no specific trigger, and the symptoms had worsened over the
prior three months. (Tr. 253, 255) Barton had reported that
her pain was constant with a score of seven on the best day
and ten on the worst day, on a scale of zero to ten. (Tr.
253) On examination, Barton's left buttock was tender to
palpitation in the gluteus medius and minimus distribution,
the greater trochanteric bursa was tender to a lesser extent,
and there was painful range of motion with hip flexion. (Tr.
255) Dr. Cordero prescribed physical therapy, trigger point
injections, and over the counter medications. Id.
December 11, 2012 Barton underwent a spine evaluation with
physical therapist Marie Soha at the Cleveland Clinic
Rehabilitation and Sports Therapy facility. (Tr. 328) Barton
displayed minimal to moderate decreased range of motion in
the thoracic and lumbar spines, with decreased strength in
the left ankle and left hip, increased tone in the lumber
paraspinals, and significant tenderness in the lower
posterior superior iliac spine. (Tr. 330-31)
December 27, 2012, Pavan Tankha, DO and Dr. Richard
Rosenquist performed gluteus medius and minimus trigger point
injections. (Tr. 269) After the procedure, Barton reported
that her pain level was zero on a scale of zero to ten. (Tr.
January 2013, Barton received aquatherapy from Dr. Mark
Hjelmeland at the Cleveland Clinic Rehabilitation and Sports
Therapy facility. (Tr. 340) After the January 20, 2013
therapy session, Barton reported constant pain in the lower
back and lumbar spine center, which she rated five on a scale
of zero to ten. (Tr. 341)
January 21, 2013, Dr. Yumi Oh and Dr. Andrei Brateanu
evaluated Barton for back pain and headache, or bilateral
soreness. (Tr. 783) Barton stated that she was diagnosed with
fibromyalgia. (Tr. 784) Barton also reported that she had
started having headaches one month prior to that date, which
lasted for “minutes” and occurred three to four
times a day. (Tr. 783-84)
January 24, 2013, in an appointment with Dr. Rosenquist and
Dr. Maged Guirguis, Barton reported that her low back pain
symptoms had recurred three days after she received the
injections on December 27, 2012. (Tr. 280) Barton also
reported a throbbing pain located on her left or right scalp
that radiated to the back of her head. Id. Dr.
Rosenquist noted tenderness on palpitation in the gluteus
medius and minimus distribution on both sides, and the
straight leg exam and FABER test were positive, while knee
provocative maneuvers were negative. (Tr. 282) Barton
received bilateral gluteus medius and minimus trigger point
injections and Dr. Rosenquist prescribed additional
injections and continued physical therapy and aquatherapy.
Id. The following day, Barton filed this claim for
disability benefits. (Tr. 121)
April 22, 2013, Dr. Albert Sey and Dr. Malti Vij evaluated
Barton in a routine outpatient visit at which Barton
complained that her back pain was getting worse and requested
a prescription for a cane. (Tr. 789) An examination showed
that range of motion was normal in Barton's hips, knees,
shoulders, and spine and that she had a normal gait. (Tr.
790) Dr. Sey made a referral, stating: “[W]ill see pain
management in a week for prescription for cane.”
April 29, 2013, Dr. Rosenquist evaluated Barton for pain in
her low back, buttock, and right knee. (Tr. 405, 531) Barton
reported that her lower back pain was always present, and,
like her knee pain, was exacerbated by standing or walking.
Id. Barton reported that her knee often felt like it
would give out on her. Id. Dr. Rosenquist observed
tenderness on palpation over Barton's lumbar spine,
bilateral lumbar paraspinal muscles, and the upper gluteal
muscles and that Barton had difficulty going from sitting to
standing. (Tr. 407, 533) Dr. Rosenquist found that
Barton's symptoms were consistent with her degenerative
changes and the associated muscular pain. (Tr. 408, 534) Dr.
Rosenquist prescribed physical therapy, weight loss, and a
cane to help with walking ...