United States District Court, N.D. Ohio, Eastern Division
A. BARKER, JUDGE
REPORT AND RECOMMENDATION
Kathleen B. Burke, United States Magistrate Judge
Jeffery Holmes (“Holmes”) seeks judicial review
of the final decision of Defendant Commissioner of Social
Security (“Commissioner”) denying his application
for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”). Doc. 1.
This Court has jurisdiction pursuant to 42 U.S.C. §
405(g). This matter has been referred to the undersigned
Magistrate Judge for a Report and Recommendation pursuant to
Local Rule 72.2(b)(1).
reasons stated below, the undersigned recommends that the
Commissioner's decision be AFFIRMED.
protectively filed applications for DIB and SSI in May 2013,
alleging a disability onset date of March 1, 2013. Tr. 442,
15. He alleged disability based on the following: pain and
limitations in his shoulders, lumbar spine and left leg; pain
in his buttocks; arthritis; dysthymic disorder; anxiety;
paranoia; and memory loss. Tr. 454. After denials by the
state agency initially (Tr. 172, 173) and on reconsideration
(Tr. 204, 205), Holmes requested an administrative hearing.
Tr. 275. A hearing was held before an Administrative Law
Judge (“ALJ”) and Holmes amended his alleged
onset date to April 1, 2013. Tr. 403. On February 26, 2016,
the ALJ determined that Holmes was not disabled prior to May
1, 2015, but was disabled after that date. Tr. 227-228.
Holmes appealed this decision to the Appeals Council. Tr.
316. The Appeals Council accepted review, vacated the
ALJ's decision, and remanded to an ALJ for further
review. Tr. 239-241.
remand, a new ALJ held a hearing on December 21, 2017. Tr.
46-67. In his January 16, 2018, decision (Tr. 15-38), the ALJ
determined that there are jobs that exist in the national
economy that Holmes can perform, i.e., he was not and is not
disabled at any time during the relevant time period. Tr.
37-38. The Appeals Council denied Holmes's request for
review, making the ALJ's decision the final decision of
the Commissioner. Tr. 1-3.
Personal and Vocational Evidence
was born in 1966 and was 46 years old on his alleged onset
date. Tr. 36. He previously performed work as a maintenance
technician. Tr. 70.
Relevant Opinion Evidence
March 19, 2015, Holmes's treating physician, James R.
Wolfe, M.D., provided a medical opinion in the context of a
routine medication refill appointment. Tr. 800. Dr. Wolfe
opined that Holmes's condition was stable, he was not
physically limited, and Dr. Wolfe had not set any specific
physical restrictions. Tr. 800. Dr. Wolfe stated,
“Right now [Holmes] has a lot of complaints, but
nothing that rises to the level where he really wants to do
anything about it.” Tr. 800. Holmes's physical
examination was normal and he was diagnosed with shoulder
arthritis, lumbar disc degeneration with radiculitis, and
opioid dependence. Tr. 800. Dr. Wolfe continued Holmes's
medications. Tr. 800.
August 18, 2017, Holmes saw Dr. Wolfe for facet injections.
Tr. 863. Upon exam, Holmes had minimal tenderness in his
back, mostly facet pain, and was otherwise normal. Tr. 863.
Dr. Wolfe stated, “I have not set any physical
limitations nor have I recommended against employment.”
Tr. 863. He encouraged Holmes to stay active and stick with
his exercise program. Tr. 863.
December 2, 2015, Holmes saw Kristin Cola, D.O., for an
orthopedic consultative examination for low back pain and
bilateral shoulder pain. Tr. 805. Upon exam, Holmes was
unable to touch his toes but was able to get on the
examination table. Tr. 806. He had an antalgic gait and he
appeared to be unsteady on his feet. Tr. 806. He could rise
up on his heels and toes but was unable to walk on his heels
or toes. Tr. 806. He had mild paraspinal tenderness to
palpation in the lumbosacral region of his back, negative
sciatic notch tenderness, a positive straight leg raise test
on the right, diminished sensation to light touch on his
anterior thighs bilaterally, and his reflexes were slightly
diminished and symmetric. Tr. 807. He had full muscle
strength and reduced range of motion in both shoulders and
his lumbar spine. Tr. 808-810. Dr. Cola opined that, based on
the lack of range of motion in his shoulders, Holmes would be
limited to sedentary desk-type work (typing, talking on the
phone, and writing). Tr. 807. He would be unable to do any
overhead activities. Tr. 807. Based on his apparent unsteady
gait, he would not be safe to crouch, crawl, or climb
scaffolding or ladders. Tr. 807. He could perform sedentary
work for about an hour at a time and would need
“multiple breaks to stand up and walk around and get
readjusted.” Tr. 807. He could lift up to five pounds
and could only drive short distances. Tr. 807. He did not
need to use an assistive device at work every day; Dr. Cola
recommended he use an assistive device only on particularly
painful days “given his unsteadiness with pain.”
December 16, 2015, Dr. Cola completed a check-box form on
behalf of Holmes. Tr. 812-817. Based on her initial
examination, Dr. Cola opined that Holmes could occasionally
lift and carry up to 10 pounds and never more; sit for six
hours in a workday, stand for one hour in a workday, and walk
for a one hour in a workday; he did not need a cane to
ambulate; he could never reach overhead or in any other
direction with either hand; he could frequently handle,
finger, and feel bilaterally and use foot controls and
occasionally push and pull bilaterally; he could never
balance, stoop, kneel, crouch or crawl; and he could
occasionally climb ramps and stairs but never ladders or
scaffolds. Tr. 812-815. Dr. Cola opined that Holmes can
perform activities such as shopping, use public
transportation, travel without a companion, prepare simple
meals and feed himself, care for his personal hygiene, and
sort, handle, and use paper files. Tr. 817. He could not
ambulate without using a wheelchair, walker, or two canes or
two crutches, he was not able to climb a few steps at a
reasonable pace with the use of a single hand rail, and he
was not able to walk a block at a reasonable pace on rough or
uneven surfaces. Tr. 817.
was represented by counsel and testified at the
administrative hearing. Tr. 49. He testified that he has been
seeing Dr. Wolfe for pain management since 2013. Tr. 50-51.
Dr. Wolfe prescribes medication and gives him injections. Tr.
50. He has terrible pain in his shoulders that has gotten
worse over time. Tr. 53. He used to get shoulder injections
from Dr. Wolfe but has stopped them because they stopped
helping him. Tr. 53-54. Since April 2013, his pain level has
stayed the same or gotten worse. Tr. 54. He has difficulty
reaching; he is unable to reach over his head and has
difficulty reaching straight out in front. Tr. 54. He is able
to reach in front of him about five inches; for example, he
can pick up a piece of paper on the table in front of him.
Tr. 54-55. Beyond five inches he starts getting pain. Tr. 55.
He can lay his arms on the table, but he has to do it slowly
and it hurts. Tr. 55. When asked if he has problems grasping
or handling things, Holmes stated, “My gripping is not
too bad.” Tr. 57. It has gotten better, but he
“can't do lifting with the gripping with very much
weight.” Tr. 57. He has no issues with fingering and at
times has issues with feeling due to numbness. Tr. 57-58.
also has pain in his mid and lower back that radiates down
into both legs. Tr. 58. He saw a spine surgeon who did some
injections, considered surgery, but then thought he had
better wait on the surgery and sent him to Dr. Wolfe. Tr. 58.
Dr. Wolfe gives him medication and injections. Tr. 58. There
is no talk of surgery at this point. Tr. 58. He has had every
kind of physical therapy you could think of since 2009 and it
hasn't helped. Tr. 58. When asked about a treatment note
that he used a walker or two crutches, Holmes stated that he
did not use two crutches, “there is no walker, ”
and he has a cane that he uses sometimes to help. Tr. 59. He
started using a cane at home but he is embarrassed to use it
outside the house. Tr. 59. He has never had a cane or walker
prescribed to him; he was told in the past that if he needs