United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE
Michael Wolford filed this action seeking review of a final
decision of the Commissioner of Social Security (the
“Commissioner”) denying his application for
disability insurance benefits (“DIB”). For the
reasons that follow, Plaintiff's Statement of Errors
(Doc. 16) is OVERRULED and the
Commissioner's decision is AFFIRMED.
first filed an application for benefits nearly nine years ago
in October 2009, and a complicated procedural history has
followed. To put the procedural history in context, the Court
first sets forth the relevant medical background. After doing
so, the Court addresses the prior proceedings, including the
hearing testimony and the ALJ's decision, to the extent
necessary to reach a decision here.
Relevant Medical Background
was born in 1955. (Tr. 74, PAGEID #: 127). He has
osteoarthritis and pain in his knees, and his amended onset
date is January 3, 2009. (See Tr. 22, PAGEID #: 74).
Dr. Robert A. Fada is an orthopedic surgeon who examined
Plaintiff in September 26, 2008. Subsequent to that visit, on
November 24, 2009, Dr. Fada completed a form entitled
“Medical Source Statement: Patient's Physical
Capacity.” (Tr. 455-56, PAGEID #: 512-13). That form
reflects Dr. Fada's opinion that Plaintiff can stand/walk
for 30 minutes at a time for a total of four hours out of an
eight-hour period and sit without limitation. (Tr. 455,
PAGEID #: 512). Dr. Fada further opined that Plaintiff would
not need any additional breaks during an eight-hour workday,
apart from the normal breaks at approximately two-hour
intervals. (Tr. 456, PAGEID #: 513). However, Dr. Fada
checked the box indicating that Plaintiff would need an
at-will sit/stand option. (Id.).
Mark Baldwin is an independent consultative examiner who
examined Plaintiff on December 2, 2009. (Tr. 460-62, PAGEID
#: 517-19). Dr. Baldwin found that, although Plaintiff's
gait favored his left leg, he did not demonstrate any
difficulty going from sitting to standing. (Tr. 461, PAGEID
#: 518). Dr. Baldwin noted mild, bilateral effusions and
limited flexion of the knees. (Tr. 462, PAGEID #: 519). Dr.
Baldwin found that Plaintiff had no palpable crepitus, a
negative Drawer test, no excessive movement of the medial or
lateral collateral ligaments, normal muscle strength in both
lower extremities, and normal deep tendon reflexes. (Tr.
460-62, PAGEID #: 517-19). Dr. Baldwin's medical source
statement provided that Plaintiff “cannot do any work
requiring any type of standing. He could work at a job that
required only sitting but he would have to be given time to
get up and move around.” (Tr. 462, PAGEID #: 519).
January 2010, Plaintiff visited the Columbus VA Ambulatory
Care Center and reported increased severity in knee pain.
(Tr. 509, PAGEID #: 566). Plaintiff likewise reported that
knee pain was interfering with his activities of daily living
and sleep. (Id.).
Larry Reed, Plaintiff's treating physician, examined
Plaintiff on August 9, 2013, for bilateral knee pain and
found normal strength, sensation, coordination; deep tendon
reflexes in the lower extremities with normal range of
motion; and no objective findings for Plaintiff's
complaints of knee pain. (Tr. 1081-83, PAGEID #: 1144-46
(noting “aching knees, no objective findings”)).
Dr. Reed made similar physical examinations findings in 2014
and 2015. (See, e.g., Tr. 1082, PAGEID #: 1145; Tr.
1085-86, PAGEID #: 1148-49; Tr. 1137-38, PAGEID #: 1137-38).
initially filed an application for a period of disability and
DIB in October 2009, alleging a disability onset date of June
12, 2008. (Tr. 74, 103, PAGEID #: 127, 158). After his
application was denied initially and upon reconsideration
(Tr. 78, 88, PAGEID #: 132, 142), Plaintiff filed a Request
for Hearing by an Administrative Law Judge. (Tr. 94, PAGEID
#: 148). The Request was granted, and Administrative Law
Judge John Montgomery (the “ALJ”) held a hearing
on June 27, 2011. (Tr. 38, PAGEID #: 90). At the hearing,
Plaintiff amended his onset date to January 3, 2009. (Tr. 22,
PAGEID #: 74). The ALJ issued an unfavorable decision
thereafter, finding that Plaintiff retained the capacity to
perform sedentary activity including his past work. (Tr.
22-31, PAGEID #: 74-83). Plaintiff appealed to this Court.
See Wolford v. Comm'r of Soc. Sec.,
Plaintiff's appeal was pending here, he filed new
applications for DIB and Supplemental Security Income
(“SSI”) in December 2012 (Plaintiff's
“December 2012 claims”). (Tr. 663, PAGEID #:
722). The new applications were denied initially and upon
reconsideration. (Tr. 728, 738, PAGEID #: 788, 798).
2013, the parties agreed to a remand of Plaintiff's
original claim in Wolford v. Comm'r of Soc.
Sec., 2:12-cv-1145. (Doc. 15 in 2:12-cv-1145). In doing
so, the parties stipulated that the ALJ would obtain
additional evidence, reevaluate certain opinions
(specifically those provided by Dr. Fada and Dr. Baldwin),
obtain supplemental vocational evidence in support of the
step four finding, and, if warranted, determine whether
Plaintiff could perform other occupations that exist in
significant numbers in the national economy. (Id.).
The Court adopted the stipulation and ordered the case to be
remanded in July 2013. (Doc. 16 in 2:12-cv-1145).
December 1, 2014, the Appeals Council issued an order
remanding Plaintiff's December 2012 claims for DIB and
SSI to the ALJ for further proceedings. (Tr. 680-84, PAGEID
#: 739-43). Noting the Court's remand in Wolford v.
Comm'r of Soc. Sec., 2:12-cv-1145, the Appeals
Council vacated the Commissioner's final decision on
Plaintiff's December 2012 claims and remanded those
claims to the ALJ to address the following issues:
• The residual functional capacity assessment (RFC) did
not include the limitations assessed by treating and
examining sources though the opinions were given significant
or great weight. On November 24, 2009, the claimant's
treating physician, Robert A. Fada, M.D, opined that in an
eight hour day, the claimant could stand/walk for four hours,
sit for eight hours; he can stand/walk for 30 minutes at a
time; he can rarely climb, stoop, crouch, kneel or crawl; he
needs a sit/stand option; and he experiences moderate pain
(Tr. 455-59). The decision gave significant weight to this
opinion because it was consistent with the objective medical
evidence (Tr. 29). The RFC included several of the
limitations Dr. Fada assessed; however, the decision did not
address Dr. Fada's opinion that the claimant required a
sit/stand option and the decision did not explain why that
limitation was rejected (Social Security Ruling (SSR) 96-8p).
SSR 96-8p provides that if the RFC conflicts with a medical
source opinion, the adjudicator must explain why the opinion
was not adopted.
• The examining physician, Mark Baldwin, D.O., opined
that the claimant could not perform jobs that required
“any type of standing” but he could perform
sitting jobs that permitted him to move around (Tr. 462). The
decision gave great weight to this opinion but the RFC did
not include the limitation from standing and the decision did
not provide rationale for rejecting it.
• The RFC presented to the vocational expert at the
hearing was less restrictive than the RFC in the decision. At
step four of the sequential evaluation process, the decision
stated that the claimant could perform his past relevant work
as a Receiving Clerk (Tr. 29-30). The decision cited the
vocational expert's testimony in support of this finding
(id.). However, the RFC presented to the vocational
expert differed from the one in the decision. The decision
stated that the claimant “can only sit for one hour at
a time for a total of 6 out of 8 hours, stand and walk for 30
minutes at a time for two hours total and occasionally climb
stairs, stoop, kneel, and crouch. He cannot climb ropes,
ladders, or scaffolding and should avoid hazards such as
unprotected height, machinery, and concentrated exposure to
temperature extremes” (Tr. 26). At the hearing, the ALJ
asked the vocational expert to assume that the hypothetical
individual could perform no more than sedentary work but
would need to change position after one hour, sit for a
couple of minutes if standing, or stand for a couple of
minutes if sitting, etc. (Tr. 67-68). Although the vocational
expert responded that the individual could perform the
claimant's past work, the sitting limitation in the RFC
differs considerably from the one in the decision where the
claimant was limited to standing and walking for 30 minutes
at a time (Tr. 26). Thus, the vocational expert's
testimony is not substantial evidence for the step four
(Tr. 682-83, PAGEID #: 741-42). The Appeals Council also
specified that, upon remand, the ALJ was to:
• Obtain additional evidence concerning the
claimant's medically determinable impairment in order to
complete the administrative record in accordance with the
regulatory standards regarding consultative examinations and
existing medical evidence (20 CFR 404.1512-1513).
• Give further consideration to the treating and
non-treating source opinions pursuant to the provisions of 20
CFR 404.1527 and Social Security Rulings 96-2p and 96-5p, and
explain the weight given to such opinion evidence. As
appropriate, the Administrative Law Judge may request the
treating and non-treating sources to provide additional
evidence and/or further clarification of the opinions and
medical source statements about what the claimant can still
do despite the impairment (20 CFR 404.1512).
• Give further consideration to the claimant's
maximum residual functional capacity and provide appropriate
rationale with specific references to evidence of record in
support of the assessed limitations (20 CFR 404.1545 and
Social Security Ruling 96-8p).
• Further evaluate the claimant's past relevant work
and determine if he is capable of performing any of his past
jobs in accordance with the regulations. If warranted, the
Administrative Law Judge should obtain a detailed work
history report and develop the record further with regards to
the claimant's work history.
• If warranted by the expanded record, obtain evidence
from a vocational expert to clarify the effect of the
assessed limitations on the claimant's occupational base
(Social Security Ruling 83-14), and to determine whether the
claimant has acquired any skills that are transferable to
other occupations under the guidelines in Social Security
Ruling 82-41. The hypothetical questions should reflect the
specific capacity/limitations established by the record as a
whole. The Administrative Law Judge will ask the vocational
expert to identify examples of appropriate jobs and to state
the incidence of such jobs in the national economy (20 CFR
404.1566). Further, before relying on the vocational expert
evidence the Administrative Law Judge will identify and
resolve any conflicts between the occupational evidence
provided by the vocational expert and information in the
Dictionary of Occupational Titles (DOT) and its companion
publication, the Selected Characteristics of Occupations
(Social Security Ruling 00-4p).
(Tr. 683-84, PAGEID #: 742-43). Finally, the Appeals Council
found Plaintiff's December 2012 claims to be duplicative
of Plaintiff's 2009 claim, so it ordered the ALJ to
“associate the claim files and issue a new decision on
the associated claims.” (Tr. 684, PAGEID #: 743).
27, 2015, the ALJ issued two separate decisions denying
Plaintiff's applications. (Tr. 546-57, PAGEID #: 604-15
(addressing SSI); Tr. 563-74, PAGEID #: 621-32 (addressing
DIB)). In Plaintiff's Statement of Errors, he states that
the ALJ's “essential findings are the same in both
decisions;” thus, Plaintiff cites only to the ALJ's
decision denying his application for DIB. (Doc. 16 at 2).
Defendant does the same in opposition. (Doc. 17 at 3, n.3).
Plaintiff did not file a reply brief.
the parties' lead, this Court cites only to the ALJ's
decision concerning Plaintiff's application for DIB (the
“DIB Decision”). (Tr. 560-83, PAGEID #: 618-41).
Plaintiff requested review of that decision by the Appeals
Council (Tr. 787, PAGEID #: 847), which denied his request.
(Tr. 533-35, PAGEID #: 591-93). Thus, the ALJ's DIB
Decision constitutes the Commissioner's final decision.
Relevant Hearing Testimony
purposes of reaching a decision here, Plaintiff's first
hearing (held in July 2011) is noteworthy only to the extent
that Plaintiff testified that he has difficulty sitting for
more than 10 or 15 minutes before he needs to change
positions. (Tr. 48, PAGEID #: 100). Because Plaintiff's
second hearing (held in June 2015) is more relevant to this
decision, the Court examines it more fully below. (Tr.
584-628, PAGEID #: 642-86).
Plaintiff's second hearing, he testified that he lives
with his brother because he “can't afford anything
else.” (Tr. 588, PAGEID #: 646). Plaintiff's
counsel explained that Plaintiff's “most
significant” impairment is “degenerative joint
disease of both knees.” (Id.). His counsel
argued that this condition, “in addition to
[Plaintiff's] insulin dependent diabetes, [his] status
post coronary artery bypass graph, hypertension, some lumbar
issues, and some neurologic issues … preclude
[Plaintiff] from doing his past work or any other
work.” (Tr. 589, PAGEID #: 647).
testified that he is 5'7” and weighs 184 pounds.
(Id.). He has a driver's license and drives
approximately two to three times per week. (Tr. 589-90,
PAGEID #: 647-48). Plaintiff graduated from high school and
attended college for a period of time. (Tr. 590, PAGEID #:
648). Plaintiff's work history includes positions as an
administrative assistant (id.), a transportation
specialist (Tr. 591, PAGEID #: 649), a janitorial assistant
(Tr. 593, PAGEID #: 651), a supply technician (Tr. 593-94,
PAGEID #: 651-52), a material handler (Tr. 594, PAGEID #:
652), a receiving manager (Tr. 595, PAGEID #: 653), and a
surveillance monitor (Tr. 596, PAGEID #: 654).
testified that he is unable to stand for five minutes without
pain. (Tr. 598, PAGEID #: 656). Plaintiff explained that he
also has problems sitting more than five minutes due to
arthritis and urinary frequency caused by his diabetes. (Tr.
600-601, PAGEID #: 658- 59). Plaintiff testified that he uses
a prescribed cane to rise from a seated position, ambulate,
and climb “some” stairs. (Id.).
Plaintiff stated that he can lift approximately ten to
fifteen pounds. (Tr. 601, PAGEID #: 659).
goes to the library, reads, and watches television. (Tr. 603,
PAGEID #: 661). Occasionally, he plays pool and goes to
karaoke outside of his house. (Id.). Plaintiff's
household chores include washing dishes, preparing meals, and
sweeping the house. (Id.). Plaintiff testified that
he has difficulty getting dressed and getting out of the
shower. (Tr. 604, PAGEID #: 662).
Medical Examiner Dr. Jonathan W. Nusbaum's Testimony
Examiner Dr. Jonathan W. Nusbaum also testified at the
hearing. (Tr. 610, PAGEID #: 668). Dr. Nusbaum stated that
Plaintiff's “primary issue is his degenerative
arthritis of his knees, ” which became severe in the
beginning in November 2009. (Tr. 613, 616, PAGEID #: 671,
674). Dr. Nusbaum testified that Plaintiff “has a great
deal of difficulty ambulating” and “[h]is ability
to carry any objects would be substantially
restricted.” (Tr. 612, PAGEID #: 670). Dr. Nusbaum
[Plaintiff] has a history of degenerative arthritis,
primarily of both knees. It is severe in nature.
Consideration for total joint replacement has been
recommended. He has repeated episodes of antalgic gait and
has used-required a cane for the past two years. I believe
that, in my opinion, he has a very limited ability to
ambulate, to climb stairs, and that adversely affects his
lifting and certainly affects his carrying. I think he
satisfies the requirements for listing 1.02a.
(Tr. 611, PAGEID #: 669; see also Tr. 616, PAGEID #:
674 (“I said he met [listing 1.02A].Yes.”)). Dr.
Nusbaum explained that his opinion was “based on the
whole constellation of his complaints of pain, his x-ray
findings, [and] his need to use a cane.” (Tr. 617,
PAGEID #: 675). He added that walking on ...