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Hernandez v. Saul

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

July 29, 2019

ANDREW SAUL, Commissioner of Social Security, Defendant.



         Plaintiff, Sherie Hernandez (“Plaintiff” or “Hernandez”), challenges the final decision of Defendant, Andrew Saul, [1] Commissioner of Social Security (“Commissioner”), denying her 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, and 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and the consent of the parties, pursuant to 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is VACATED and REMANDED for further consideration consistent with this opinion.


         In June 2013, Hernandez filed an application for POD, DIB, and SSI alleging a disability onset date of December 1, 2012 and claiming she was disabled due to leg surgeries for poor circulation, diabetes, high blood pressure, high cholesterol, a blood infection, and depression. (Transcript (“Tr.”) at 263, 265, 304.) The applications were denied initially and upon reconsideration, and Hernandez requested a hearing before an administrative law judge (“ALJ”). (Tr. 180, 191, 210, 215.)

         On June 2, 2015, an ALJ held a hearing, during which Hernandez, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 47.) On August 5, 2015, the ALJ issued a written decision finding Plaintiff was not disabled. (Tr. 22.) The ALJ's decision became final on July 18, 2016, when the Appeals Council declined further review. (Tr. 1.)

         Hernandez subsequently filed a Complaint in the Northern District of Ohio, challenging the August 5, 2015 ALJ decision. On April 4, 2017, the Northern District of Ohio remanded the case for further administrative proceedings. (Tr. 2103.) The Appeals Council then remanded the matter back to an ALJ. (Tr. 2158.)

         On March 12, 2018, an ALJ held a hearing, during which Hernandez, represented by counsel, and an impartial VE testified. (Tr. 2069.) On July 13, 2018, the ALJ issued a written decision, again finding Hernandez was not disabled. (Tr. 2041.)

         On September 18, 2018, Hernandez filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 13, 16.) Hernandez asserts the following assignments of error:

(1) The physical residual functional capacity determination is unsupported by substantial evidence because the ALJ failed to properly evaluate the medical opinion evidence.
(2) The Step 5 determination is unsupported by substantial evidence because the ALJ relied upon an incomplete hypothetical question asked to the vocational expert.

(Doc. No. 13.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Hernandez was born in July 1975 and was forty-two years-old at the time of her administrative hearing, making her a “younger” person under social security regulations. (Tr. 2059.) See 20 C.F.R. §§ 404.1563 & 416.963. She has a high school education and is able to communicate in English. (Id.) She has past relevant work as a wheelchair attendant. (Id.)

         B. Relevant Medical Evidence[2]

         On November 21, 2012, Hernandez visited vascular surgeon Christopher Smith, M.D., because she had an abnormal non-invasive vascular study. (Tr. 461.) Hernandez described bilateral calf pain precipitated by walking less than a block. (Id.) On examination, Hernandez had ulcers in both of her lower extremities. (Tr. 462.) Dr. Smith diagnosed peripheral vascular disease with moderate distal ischemia on the right side and severe distal ischemia on the left side. (Tr. 463.) The doctor ordered an MR angiogram of the bilateral lower extremities. (Id.)

         A December 4, 2012 MR angiogram of the bilateral legs revealed the following: (1) extensive venous contamination limits of the vessels distal to the ankle; (2) multiple areas of short segment, high grade stenosis, with distal reconstitution at the popliteal artery above the knee in the right superficial femoral artery; (3) likely occlusion of the right and left posterior and tibial artery; (4) occlusion of the right peroneal artery and left superficial femoral artery; and (5) serpiginous marrow enhancement with the proximal and distal tibial shaft, associated with some suspectibiliy. (Tr. 467.)

         Hernandez was then hospitalized from December 26 - 28, 2012 in order to undergo a femoral-popliteal bypass in the left leg. (Tr. 454.) A January 2, 2013 left foot x-ray was negative for osteomyelitis or fracture. (Tr. 502.)

         On March 19, 2013, Hernandez presented to the emergency room with a sharp, stabbing right leg pain. (Tr. 404.) The emergency room physicians noted she was scheduled for right leg surgery that week and provided her with Percocet for pain control. (Tr. 404, 406.) Hernandez was subsequently hospitalized from March 21 - 24, 2013 for a right leg popliteal bypass with a graft. (Tr. 399, 396.)

         Following this procedure, Hernandez developed an infection at the site of the surgical incision. (Tr. 388.) She was hospitalized from May 6 - 8, 2013 to obtain IV antibiotic treatment. (Tr. 387.) A peripheral vascular study conducted during this hospital stay revealed widely patent bilateral leg bypass grafts and no ischemia in either leg or foot. (Tr. 388.)

         On May 22, 2013, Hernandez followed up with Dr. Smith, her vascular surgeon. (Tr. 363.) On examination, she has a stable right heel wound, a nearly healed left foot wound, and a clean right leg wound. (Id.) Dr. Smith advised her to continue with wound care and return in a month. (Id.)

         Hernandez returned to the emergency room on June 27, 2013 for right leg and calf pain. (Tr. 544.) Her right leg felt “cold” and her pain increased with elevation of her right foot. (Id.) Her right thigh wound exhibited minimal drainage. (Id.) On examination, Hernandez had trace edema in her right leg and her right foot was cool to touch. (Tr. 545.) Her distal capillary refill was delayed and she had decreased sensation. (Id.) Hernandez was subsequently admitted to the hospital for a “cold, pulseless right foot” and underwent an angioplasty of her thrombosed right femoral-popliteal bypass graft. (Tr. 587.) The pulse returned to Hernandez's foot following this procedure. (Tr. 588.)

         On July 11, 2013, Hernandez underwent an arterial thrombolysis procedure which confirmed (1) thrombosis of the right femoral-popliteal bypass graft and (2) successful placement of an infusion catheter across the graft. (Tr. 594.)

         On August 28, 2013, Hernandez required hospitalization because she again had no signal in her right foot. (Tr. 668-669.) She underwent a surgical revision of her right leg graft. (Tr. 665.) By the end of her hospital stay, she was able to ambulate with assistance. (Tr. 668-669, 665.)

         From September 16 - 22, 2013, Hernandez was hospitalized for debridement of a right heel ulcer and a wound vac placement. (Tr. 657, 658.) She was discharged with home health care services. (Tr. 658.) An October 2, 2013 right heel x ray confirmed osteomyelitis. (Tr. 655.)

         On October 16, 2013, Dr. Smith filled out a form entitled “Residual Functional Capacity Questionnaire” regarding Hernandez. (Tr. 1046-1047.) Dr. Smith found the following limitations for Hernandez:

• she cannot walk a city block without pain;
• she can sit for 60 minutes at one time and for 1 hour total in an 8 hour workday;
• she can stand/walk for 5 minutes at one time and cannot stand for an hour total in an 8-hour workday;
• she requires unscheduled 15-minute breaks about every 15 minutes;
• she cannot lift 10 pounds;
• she can use arms, hands, and fingers for 100% of the day for repetitive reaching, handling, and fingering;
• she would miss work more than four times a month; and
• she is not capable of working 8 hours a day, 5 days a week on a sustained basis.


         Hernandez returned to Dr. Smith on November 5, 2013 for her right heel ulcer. (Tr. 623.) At that time, Hernandez was on IV antibiotics and a nurse visited her home twice a week. (Id.) Dr. Smith advised Hernandez to not bear any weight on her right heel. (Id.)

         On November 19, 2013, Hernandez visited vascular surgeon John Francis, M.D., for her right heel ulcer. (Tr. 611.) Dr. Francis noted Hernandez's ulcer had improved and she no longer required IV antibiotics. (Id.) Hernandez continued to take oral antibiotics and not bear weight on her right foot. (Id.) Dr. Francis recommended Hernandez continue to change her wound dressings and not bear weight on her right foot. (Tr. 612.)

         Hernandez continued to receive home health care throughout this period. (Tr. 923.) Her home health care provider assisted her with personal care, bathing, dressing, light housekeeping, meal preparation, and laundry. (Id.) This care was briefly suspended on March 11, 2014 because of a hospital admission. (Tr. 941.) On that date, Hernandez underwent a duplex scan of her right femoral-popliteal bypass graft, which confirmed inflow stenosis and no dopplar signal. (Tr. 1049.) Hernandez was then hospitalized through March 13, 2014 for a “significant stenosis at the level of the inflow vessel” and a “threatened limb.” (Tr. 1060.)

         During this hospitalization, Hernandez underwent a balloon angioplasty of the right leg graft and a left arm PICC line placement. (Tr. 1061.) She also received IV antibiotics and wound care. (Id.) Upon discharge, she resumed her home health care services and was unable to fully bear weight on her right leg. (Tr. 1060.)

         On March 17, 2014, Hernandez underwent another surgical procedure, a right femoral endartectomy and bovine patch angioplasty. (Tr. 1248.) Hernandez continued to have home health care service certification through May 11, 2014. (Tr. 1463.)

         Hernandez visited vascular surgeon Jeffrey Alexander, M.D. on May 13, 2014. (Tr. 1449.) She had “generally been doing well” but ambulated with the assistance of a walker. (Id.) Dr. Alexander noted Hernandez had a right foot drop and a right heel ulcer. (Id.) On examination, Hernandez could not bear weight on her right heel. (Id.) Her right foot was warm, but Dr. Alexander could not feel her pedal pulses. (Id.) Dr. Alexander referred Hernandez to physical therapy. (Id.)

         On May 16, 2014, Dr. Alexander completed a “Residual Functional Capacity Questionnaire” on behalf of Hernandez. (Tr. 708-709.) Dr. Alexander found the following limitations for Hernandez:

• she could walk less than a block without pain;
• she can sit for 30 minutes at a time and 3 hours total in an 8-hour workday;
• she can stand/walk for 5 minutes at a time and 1 hour total in an 8 hour workday;
• she requires a job that permits shifting positions at will from sitting, standing, and walking;
• she needs to take 1-2 unscheduled breaks during a workday, each lasting 15-20 minutes at a time;
• she can occasionally lift less than 10 pounds and she can never lift 10 pounds or more;
• she does not have any repetitive handling, reaching, and fingering limitations;
• she will miss work 1-2 times a month; and
• she is not physically capable of working 8 hours a day, five days a week on a sustained basis.


         Hernandez had a physical therapy appointment with Margo McGreal, P.T., on May 29, 2014. (Tr. 1432.) Hernandez reported she had been trying to put her right foot down when she walked and found it to be more painful in her knee than her ankle. (Id.) She did report improvement in her pain levels. (Tr. 1432.) Ms. McGreal noted “marked improvements in range and gait, ” but Hernandez continued to require crutches for ambulation. (Tr.1433.)

         A June 4, 2014 60-day summary of her home health care services revealed Hernandez required assistance to get up and move safely and exhibited “considerable [and] taxing effort to leave home.” (Tr. 961.) She continued to require assistance with personal care, homemaking, and activities of daily living. (Id.) Her homehealth care worker generally visited 6 days a week and would perform bathing, meal preparation, and mobility assistance. (Tr. 1022, 1023.)

         During a June 30, 2014 physical therapy appointment, Hernandez reported she was “feeling a lot better” and her leg felt “more loose.” (Tr. 1390.) She denied any pain and presented to her appointment without any assistive device. (Tr. 1390-1391.) She was able to walk on the treadmill with a “more normalized gait pattern.” (Tr. 1392.) Her physical therapist ...

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