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Wolford v. Commissioner of Social Security

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

May 25, 2018

MICHAEL WOLFORD, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. BACKGROUND

         Plaintiff 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.

         A. Relevant Medical Background

         Plaintiff 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.).

         Dr. 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).

         In 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.).

         Dr. 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).

         B. Prior Proceedings

         Plaintiff 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., 2:12-cv-1145.

         While 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).

         In June 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).

         On 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 finding.

(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).

         On July 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.

         Following 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.

         C. Relevant Hearing Testimony

         For 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).

         1. Plaintiff's Testimony

         During 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).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         2. Medical Examiner Dr. Jonathan W. Nusbaum's Testimony

         Medical 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 stated:

[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 ...


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