United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION & ORDER
Kathleen B. Burke, United States Magistrate Judge
Maria Bauer (“Plaintiff” or “Bauer”)
seeks judicial review of the final decision of Defendant
Commissioner of Social Security (“Defendant” or
“Commissioner”) denying her application for
social security disability benefits. Doc. 1. This Court has
jurisdiction pursuant to 42 U.S.C. § 405(g). This case
is before the undersigned Magistrate Judge pursuant to the
consent of the parties. Doc. 8. As explained more fully
below, the ALJ's analysis of the opinion of Bauer's
treating physician Dr. Keppler is insufficient to allow the
Court to assess whether the decision is supported by
substantial evidence. Accordingly, the Court REVERSES
and REMANDS the Commissioner's decision for
further proceedings consistent with this opinion.
August 19, 2013, Bauer protectively filed an application for
Disability Insurance Benefits
(“DIB”). Tr. 296, 342, 415-421. Bauer alleged a
disability onset date of October 20, 2013. Tr. 296, 415, 448.
She alleged disability due to kidney transplant,
fibromyalgia, three prior shoulder surgeries, muscle
inflammation, osteoporosis, joint pain, disease of
circulatory system, ruptured rotator cuff, muscle weakness,
hyperlipidemia, premenstrual system. Tr. 343, 371, 433.
Bauer's application was denied initially (Tr. 371-374)
and upon reconsideration by the state agency (Tr. 376-378).
Thereafter, she requested an administrative hearing. Tr.
379-380. On October 7, 2015, Administrative Law Judge
Jonathan Eliot (“ALJ”) conducted an
administrative hearing. Tr. 308-339.
October 28, 2015, decision (Tr. 293-307), the ALJ determined
that Bauer had not been under a disability, as defined in the
Social Security Act, from October 20, 2013, through the date
of the decision (Tr. 296, 303). Bauer requested review of the
ALJ's decision by the Appeals Council. Tr. 291-292. On
November 22, 2016, the Appeals Council denied Bauer's
request for review, making the ALJ's decision the final
decision of the Commissioner. Tr. 1-7.
Personal, vocational and educational evidence
was born in 1963. Tr. 302, 312, 415. Bauer and her husband
live in their house with their teenaged daughter. Tr.
312-313. Bauer graduated from high school and she attended
some college classes but she did not receive a college
degree. Tr. 314. She last worked in October of 2013 at a
retail job. Tr. 314. She stopped working at that time
because she was no longer able to perform her job properly
due to her pain. Tr. 314-315, 329. During the administrative
hearing, Bauer explained that her pain was so severe at the
time she stopped working that, when she got off of work, she
would have to sit in her car for 25 minutes before she could
start to drive. Tr. 329.
16, 2013, Bauer saw Dr. Peter J. Evans, MD, PhD, RFCSC,
Director of Cleveland Clinic Upper Extremity Center, for
follow up. Tr. 495. Dr. Evans noted that Bauer was returning
to see him post left rotator cuff repair February 29, 2012,
and he also noted that Bauer's right shoulder had been
fixed with an interposition graft on January 13, 2010. Tr.
495; see also Tr. 598, 1018-1020. During her July
16, 2013, visit with Dr. Evans, Bauer complained of pain in
both of her shoulders. Tr. 495. She indicated she was very
active. Tr. 495. Dr. Evans's primary diagnosis was
rotator cuff rupture. Tr. 495. He administered a subacromial
injection on the left side and advised Bauer if her pain
persisted that she should call to schedule an MRI prior to
scheduling a follow-up visit. Tr. 495. Dr. Evans also advised
Bauer to take analgesics/anti-inflammatories as needed. Tr.
August 7, 2013, a left shoulder MRI was performed. Tr.
892-893. The impression from the MRI was (1) post-surgical
changes of prior rotator cuff repair; (2) massive
full-thickness tear involving the supraspinatus and
infraspinatus tendons with retraction and muscle atrophy; (3)
high-grade partial-thickness tear of the subscapulous tendon;
and (4) moderate joint effusion and synovitis extending into
the infraspinatus fossa and surrounding the infraspinatus
muscle. Tr. 893. Bauer saw Dr. Evans on August 22, 2013,
regarding her left shoulder MRI. Tr. 869. Dr. Evans indicated
that the MRI showed “full thickness retracted rotator
cuff tear.” Tr. 869. Dr. Evans's diagnosis was
complete rupture of the rotator cuff and he discussed options
with Bauer. Tr. 869. Following those discussions, Bauer
indicated a desire to proceed with open rotator cuff surgery
and graft interposition. Tr. 869. Dr. Evans noted that the
interposition seemed to work well on Bauer's right
shoulder. Tr. 869.
November 8, 2013, Bauer saw Leighanne K. Hustak, CNP, for a
pre-op consultation. Tr. 479-486. Bauer was exercising about
60 minutes per day. Tr. 483. She was living with her husband,
teenaged daughter and father. Tr. 483. A physical examination
showed normal cognition, motor skills and gait and no
weakness or sensory deficit. Tr. 486. Also, there was no
deformity, edema, tenderness, joint swelling or clubbing
observed on physical examination of Bauer's extremities.
December 4, 2013, Dr. Evans performed surgery on Bauer's
left shoulder. Tr. 1011-1016. The surgical procedures
performed were left shoulder arthroscopy; left shoulder
arthroscopic extensive debridement of glenohumeral space,
anterior, posterior, superior; left shoulder arthroscopic
subacromial decompression; and left mini-open rotator cuff
repair with Conexa dermal graft, interposition graft. Tr.
1015. During her hospital admission, Bauer complained of
right wrist pain. Tr. 1012. An x-ray of Bauer's wrist was
taken on December 5, 2013, which showed CPPD arthropathy
(calcium pyrophosphate dehydrate crystal deposition disease
or psuedogout). Tr. 993, 1012. Rheumatology was consulted and
a steroid injection was administered with resolution of the
symptoms. Tr. 1012. Bauer was discharged home in stable
condition on December 6, 2013. Tr. 1011.
surgery, Bauer started physical therapy. Tr. 904-927. During
her fifth physical therapy session on January 7, 2014, Bauer
reported that she was compliant with her restrictions and she
was wearing her sling. Tr. 908. She denied left shoulder pain
but was feeling stiff. Tr. 908. On January 9, 2014, Bauer
drove herself to her physical therapy session. Tr. 912. She
reported no left shoulder pain. Tr. 912. Bauer was compliant
with her home exercise program and shoulder protocol and
anxious to move on to the next phase. Tr. 913. The following
weeks, during a physical therapy session, Bauer reported
feeling popping in her left shoulder and down the arm when
her husband was performing passive range of motion exercises.
Tr. 920. Bauer indicated it was a little painful. Tr. 920.
Bauer felt that, overall, her range of motion was improving.
Tr. 920. She was taking a half a Tylenol for medication. Tr.
920. She felt stiff more than anything. Tr. 920. She was
sleeping well in bed. Tr. 920.
26, 2014, Bauer sought treatment at the Southwest General
emergency room complaining of painful swelling in the inner
thigh of her right leg that started two weeks prior. Tr.
1194-1214. Bauer relayed that she had been working out more
often but there was no known injury. Tr. 1194. Bauer was
discharged the same day with diagnoses of groin strain and
hematoma of the leg. Tr. 1202.
was seen again at the Southwest General emergency room on
October 30, 2014. Tr. 1247-1272. She complained of left ankle
pain and swelling. Tr. 1247. A musculoskeletal physical
examination showed normal range of motion, normal strength
and no swelling. Tr. 1249. A physical examination of her back
revealed normal range of motion, normal alignment and no
tenderness. Tr. 1249. Bauer was diagnosed with arthritis of
the ankle, left. Tr. 1249. While in the emergency room, she
was seen by a podiatrist and the podiatrist administered a
prednisone injection into Bauer's left ankle. Tr. 1249.
Bauer was discharged home the same day. Tr. 1249.
next treatment relating to Bauer's shoulders occurred on
March 19, 2015. Tr. 1128. She saw Dr. Louis Keppler, M.D.,
with complaints of right shoulder pain and complaints of pain
and weakness in her left shoulder. Tr. 1128. Bauer complained
of constant pain, which she rated a 9 out of 10. Tr. 1128.
Dr. Keppler's notes indicate that Bauer complained that
she had been having the pain since November 14,
2015. Tr. 1128. Bauer complained of some
numbness and weakness radiating from her shoulder down into
her hand and she complained that sitting, walking, standing,
lying down, lifting, weather, and range of motion made her
symptoms worse. Tr. 1128. Dr. Keppler recounted Bauer's
surgical history. Tr. 1128. He noted Bauer was taking
aspirin. Tr. 1128. Dr. Keppler also noted that x-rays brought
to the visit by Bauer showed “high riding
shoulder.” Tr. 1128. Dr. Keppler reviewed films from
Bauer's prior surgery, noting that an MRI report showed
that Bauer had severe osteoarthritis of the shoulder and
atrophy of the musculature in her shoulder. Tr. 1128. On
physical examination, Dr. Keppler observed that Bauer had a
limited range of motion, approximately 80 degrees overhead
elevation and she was extremely weak in both arms, more so on
the left than on the right. Tr. 1128. Dr. Keppler wanted to
review the MRI films and then discuss surgical options,
including cup arthroplasty versus reverse shoulder. Tr. 1128.
Bauer planned to bring her films in for Dr. Keppler's
review. Tr. 1128.
returned to see Dr. Keppler on April 9, 2015. Tr. 1127. Bauer
complained that one of her anchors was pulled out and she was
quite sore. Tr. 1127. Dr. Keppler noted that they discussed
various options, including cuff tear arthropathy resurfacing
versus a reverse. Tr. 1127. Dr. Keppler indicated he had
strong reservations about a reverse, noting that he believed
that she had compromised bone and he would be concerned about
the glenosphere loosening in her scapula. Tr. 1127. Bauer
indicated she was going to think about things and noted that
she did not want to compromise her summer so she would follow
up at the end of the summer. Tr. 1127. Bauer sought treatment
at the Southwest General emergency room on April 30, 2015,
for abdominal pain. Tr. 1313-1337. A physical examination
showed normal range of motion and normal strength. Tr. 1316.
Bauer refused pain and nausea medication. Tr. 1319. She was
diagnosed with non-specific abdominal pain and bloating and
discharged the same day. Tr. 1329-1331.
1, 2015, Dr. Keppler completed a check-box style form
entitled “Medical Source Statement Regarding
Shoulders.” Tr. 1130-1131. Dr. Keppler opined that
Bauer had problems in both shoulders. Tr. 1130. With respect
to Bauer's left shoulder, Dr. Keppler found the following
problems - limitation of motion, weakness, pain, muscle
atrophy, bursitis, tendinitis, tendon erosion, impingement
syndrome, rotator cuff tear, AC joint arthritis (prior to
surgery), glenohumeral joint arthritis, and shoulder
instability. Tr. 1130. With respect to Bauer's right
shoulder, Dr. Keppler found the following problems - tendon
erosion, impingement syndrome, rotator cuff tear, AC joint
arthritis (prior to surgery), glenohumeral joint arthritis,
and shoulder instability. Tr. 1130. Dr. Keppler opined that
Bauer could work no hours per day; she could stand at one
time for 60 minutes; she could sit at one time for 30
minutes; she could stand for 4 hours in a workday; she could
sit for 4 hours in a workday; she could lift 10 pounds
occasionally; she could lift 5 pounds frequently; she could
use her left arm below shoulder level occasionally; she could
use her right arm below shoulder level frequently; she could
never raise her left arm over shoulder level; and she could
occasionally raise her right arm over shoulder level. Tr.
1130- 1131. Dr. Keppler opined that Bauer suffered from
“marked” pain, meaning a “[s]erious
limitation, severely limits ability to function (i.e. on task
48%-82% in an 8 hr work day.” Tr. 1131.
February 3, 2014, state agency reviewing physician Dr.
Michael Delphia, M.D., completed a physical RFC assessment.
Tr. 352-354. Dr. Delphia opined that Bauer could occasionally
lift and/or carry 20 pounds; frequently lift and/or carry 10
pounds; stand and/or walk about 6 hours in an 8-hour workday;
sit about 6 hours in an 8-hour workday; and push and/or pull
unlimitedly, except as indicated for lift and/or carry. Tr.
352-353. Dr. Delphia opined that Bauer had the following
postural limitations: frequently climb ramps/stairs, stoop,
kneel, and crouch; occasionally crawl; and never climb
ladders/ropes/scaffolds. Tr. 353. Dr. Delphia opined that
Bauer was limited to frequent overhead reaching bilaterally.
Tr. 354. Dr. Delphia also opined that Bauer would need to
avoid all exposure to hazards (unprotected heights, operating
heavy machinery or commercial driving). Tr. 354.
reconsideration, on June 12, 2014, state agency reviewing
physician Dr. Gerald Klyop, M.D., affirmed Dr. Delphia's
physical RFC assessment. Tr. 365-368.
was represented at and testified at the hearing. Tr. 312-333.
Bauer indicated that she was diagnosed with a left rotator
cuff tear in August 2013 and had surgery in December 2013.
Tr. 317. Thereafter, she attended physical therapy in January
2014. Tr. 317. Per Bauer, physical therapy did not help her
shoulder condition. Tr. 317-318. Bauer indicated that her
pain does not go away. Tr. 318. She does not take pain
medication because she cannot tolerate it - it makes her
throw up. Tr. 319. She estimated taking a half a Tylenol
about once a month. Tr. 319. Bauer discussed her left and
right shoulder surgeries, noting continuing problems with
both and that her right and left shoulders were equally bad.
Tr. 318-322, 330.
Dr. Keppler in March 2015 for a second opinion regarding her
shoulder condition. Tr. 319-320. Dr. Keppler recommended
further surgery on her left shoulder. Tr. 320. He recommended
a surgery that involved “a cap in the shoulder for the
rotator cuff[.]” Tr. 321. The surgery required a four
to six week recovery period. Tr. 321. Her other physician,
Dr. Evans, did not want to try other options because of her
prior kidney transplant. Tr. 320. Bauer was supposed to have
the surgery that Dr. Keppler recommended the month before her
administrative hearing but some family issues occurred which
caused her not to have the additional surgery. Tr. 320, 330.
Since January 2014, Bauer had ...