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Barton v. Commissioner of Social Security

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

December 8, 2017

VALERIE BARTON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          BENITA Y. PEARSON, JUDGE

          REPORT AND RECOMMENDATION

          Thomas M. Parker, United States Magistrate Judge

         I. Introduction

         Plaintiff 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 Rule 72.2(b).

         Because 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.

         II. Procedural History

         Barton 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)

         III. Standard for Disability

         Under 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). Furthermore:

[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 economy[1]….

42 U.S.C. § 423(d)(2)(A).

         In 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 disabled.
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 inquiry.
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.

         IV. 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. 30-31)
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. 31)
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)

         Based 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)

         Barton 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 finding.

         V. Evidence

         A. Personal, Educational, and Vocational Evidence

         Barton 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. (Tr. 1095)

         B. Medical Evidence

         1. Medical Evidence Pertaining to Neck and Back Impairments

         X-ray 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.

         On 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)

         On 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. 270)

         In 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)

         On 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)

         On 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)

         On 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.” Id.

         On 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 ...


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