United States District Court, N.D. Ohio, Eastern Division
ALBERT E. CARPENTER, Plaintiff,
NANCY A. BERRYHILL, Acting Comm'r of Soc. Sec., Defendant.
Y. PEARSON JUDGE.
REPORT AND RECOMMENDATION
A. RUIZ UNITED STATES MAGISTRATE JUDGE
Albert Eugene Carpenter (hereinafter
“Plaintiff”), challenges the final decision of
Defendant Nancy A. Berryhill, Acting Commissioner of Social
Security (hereinafter “Commissioner”), denying
his applications for a 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 AFFIRMED.
March 6, 2014, Plaintiff filed his applications for POD, DIB,
and SSI, alleging a disability onset date of January 15,
2006. (Transcript (“Tr.”) 184-193).
The application was denied initially and upon
reconsideration, and Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 141-159).
Plaintiff participated in the hearing on October 1, 2015, was
represented by counsel, and testified. (Tr. 40-100). A
vocational expert (“VE”) also participated and
testified. Id. On November 4, 2015, the ALJ found
Plaintiff not disabled. (Tr. 33). On November 10, 2016, the
Appeals Council declined to review the ALJ's decision,
and the ALJ's decision became the Commissioner's
final decision. (Tr. 1-3). On December 22, 2016, Plaintiff
filed a complaint challenging the Commissioner's final
decision. (R. 1). The parties have completed briefing in this
case. (R. 10 & 13).
asserts the following assignment of error: (1) the ALJ's
assessment of opinion evidence from medical sources did not
comport with the regulations and Sixth Circuit precedent. (R.
Personal and Vocational Evidence
was born in October of 1964 and was 49-years-old on the
amended alleged disability onset date. (Tr. 43, 184). He has
a degree in business management from Malone University. (Tr.
53-54). He had past relevant work as a data center operator,
bulk loader, box maker, cold food packer, ladle handler,
packager, and assistant pastor. (Tr. 30).
Relevant Medical Evidence
December 20, 2011, Plaintiff was seen at the Care Alliance
Center complaining of left hip pain and requesting pain
medication and vitamins. (Tr. 277). He reported a history of
right hip replacement 10 years earlier. Id. He was
given Ibuprofen 800mg to take as needed. (Tr. 278).
6, 2014, Plaintiff reported 7/10 pain located in both hips of
intermittent frequency. (Tr. 296).
30, 2015, Plaintiff was seen by James Brown, M.D., and
diagnosed with hypertension, chronic allergic conjunctivitis,
and primary osteoarthritis involving multiple joints for
which he was prescribed Naproxen. (Tr. 275-276).
September 14, 2015, an x-ray of Plaintiff's knees yielded
an impression of marked patellofemoral compartment
degenerative arthritis in the left knee and mild to moderate
lateral compartment degenerative arthritis in both knees.
(Tr. 282). On the same date, an x-ray of Plaintiff's
lumbar spine revealed mild degenerative disc disease at
¶ 4-5, mild facet degenerative changes at ¶ 5-S1,
and no acute abnormality. (Tr. 284).
Medical Opinions Concerning Plaintiff's Functional
April 22, 2014, at the request of the Agency, Plaintiff was
seen by Dorothy Bradford, M.D. (Tr. 267-274). Manual muscle
testing yielded normal results in all areas save for
reductions in hip flexion, extension, and rotation. (Tr.
267-270). On examination, Plaintiff's station and posture
were normal, gait was normal, and Plaintiff did not use an
ambulatory aid. (Tr. 273). Examination of his lower
extremities bilaterally revealed “No misalignment,
tenderness or masses, normal stability, normal strength and
tone. Decreased ROM at both hips more on the right.”
Id. Dr. Bradford's assessment stated:
“Claimant had a right TKR in 2000 and now alleges
repeat pain with weight bearing for the past year along with
left hip pain. He has not sought medical attention. On exam
today he does have mildly decreased ROM in both hips with
pain. His gait is normal.” (Tr. 274). Dr. Bradford
opined this exam supported “possible [degenerative
joint disease] of both hips” and that Plaintiff
“should not stand or walk for more than 30 minutes
continuously.” Id. A radiology report signed
the next day by R. Firdaus, M.D., and addressed to Dr.
Bradford states: “There is a total hip prosthesis which
is maintained in satisfactory alignment and position. No
complications are seen. Incidentally noted are some
degenerative changes in the sacroiliac joint.” (Tr.
1, 2014, State Agency non-examining physician Gerald M.
Klyop, M.D., reviewed the evidence of record, including Dr.
Bradford's above examination. (Tr. 105-106). Dr. Klyop
found Plaintiff only partially credible. (Tr. 105). While
acknowledging Plaintiff's prior joint replacement, he
noted the lack of any evidence of arthritis around the
reconstructed joint. Id. Dr. Klyop also noted
Plaintiff had some limited range of motion and reported pain,
but contrasted this with Plaintiff' normal gait and
Plaintiff's acknowledged lack of any pain treatment for
his hips in the last ten years and reliance on
over-the-counter medications to combat discomfort. (Tr. 105).
Dr. Klyop also opined that Dr. Bradford's opinion should
be ascribed only limited weight because “it is unclear
why she felt he could stand/walk in 30 minute increments as
the clt reported only 10 min tolerance and she does not
provide any explanation as to the total amount of time in a
day the clt can bear weight.” Id. Dr. Klyop
pointed to the largely normal objective manual muscle testing
that, “[a]side from some ROM deficit in the hip, clt
does not show any weakness or gait disturbance which would
support the degree of limitation opined.” Id.
Dr. Klyop opined Plaintiff could lift/carry 20 pounds
occasionally and 10 pounds frequently, stand/walk for 6 hours
and sit for 6 hours in an 8-hour workday, should avoid
heavier lifting, could frequently kneel and crouch, and could
occasionally climb and crawl. (Tr. 105-106).
18, 2014, State Agency non-examining physician Diane Manos,
M.D., also reviewed the evidence of record, including Dr.
Bradford's above examination. (Tr. 124-127). Dr.
Manos's findings are in agreement with those of Dr. Klyop
above. Id. She too found Plaintiff only partially
credible noting his lack of treatment, took issue with Dr.
Bradford's opinion given the lack of any explanation or
supporting evidence, and assessed identical lifting/carrying,
standing/walking and sitting restrictions as Dr. Klyop. (Tr.
September 14, 2015, Plaintiff was seen by George F. Muschler,
M.D., an orthopaedic surgeon. (Tr. 286-295). Dr. Muschler noted
Plaintiff walked with a limp suggesting discomfort in the
left lower extremity. (Tr. 289). Dr. Muschler stated
“[p]ain limits both flexion and internal and external
rotation [in the left hip] consistent with degenerative
arthritis seen on radiographs.” (Tr. 289). With respect
to the right hip, Dr. Muschler stated
“[w]ell-functioning hip with respect to range of
motion. Pain is reported only after prolonged standing and
weight bearing, consistent with possible early aseptic
loosening of the femoral complement associated with
polyethylene wear.” (Tr. 289-290). Dr. Muschler
diagnosed Plaintiff with the following: left hip degenerative
osteoarthritis, moderate with pain limiting physical
activities but not sufficient to justify intervention with
hip arthroplasty at present; right hip 16 years status
post-surgery with pain, possible aseptic loosening but pain
not sufficient to justify intervention with revision
arthroplasty at present; degenerative arthritis of both
knees, symptoms slightly worse on the left; high blood
pressure, controlled with medication; right ankle
osteoarthritis; right Achilles tendinosis; low back pain
consistent with mild facet arthropathy without any evidence
of radiculopathy; bilateral chronic knee pain, likely
secondary to degenerative osteoarthritis. (Tr. 290).
Radiographs and imaging studies were ordered. (Tr. 291). With
respect to exercise and activity, Dr. Muschler stated as
Standing and walking greater than 4 hours and in the lower
day as well as frequent stair climbing, ladders, scaffold,
crawling, kneeling are significant the [sic] limited by his
combination of bilateral hip and bilateral knee pathology.
This limits him from aggressive physical activities involving
the lower extremities. He is capable of working in an office
setting where stairclimbing is minimized and lifting and
carrying activities are occasional. There is no limitation
and upper extremity activities.
A regular walking program to maintain physical thickness is
encouraged. Cross training with an exercise bicycle,
treadmill, and even stair master is encouraged to the limits
of tolerance, provided he does not suffer the following day
for exercise performed during the current day.
(Tr. 291). Dr. Muschler also found that physical therapy was
“not necessary at this time, ” and opined that
home exercise was sufficient. Id.
Relevant Hearing Testimony
October 1, 2015 hearing, Plaintiff testified as follows:
. He is 6'4” and weighs 220
pounds. (Tr. 47). He is left handed. Id.
. His driver's license was suspended two
years earlier. (Tr. 51). He is able to take public
transportation. (Tr. 52).
. He lives in a ministry house with two
friends supported by donations, receives food stamps, and has
health insurance. (Tr. 48).
. He was convicted of theft in 2009. He has
a history of prior crack cocaine and alcohol abuse. ...