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Worden v. Commissioner of Social Security

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

August 28, 2019

DANIEL M. WORDEN JR., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Deavers Chief Magistrate Judge

          OPINION & ORDER

          ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the Magistrate Judge's June 10, 2019, Report and Recommendation. (ECF No. 16). The Magistrate Judge recommended that the Administrative Law Judge's (“ALJ”) finding of non-disability be REVERSED and REMANDED back to the ALJ under Sentence Four of 42 U.S.C. § 405(g). Defendant filed an Objection to this Report and Recommendation (ECF No. 17) and Plaintiff submitted a Response to Defendant's Objection. (ECF No. 18). This Court ADOPTS the Report and Recommendation in its entirety based on an independent consideration of the analysis therein.

         I. BACKGROUND

         Plaintiff, Daniel M. Worden Jr., a 45 year old divorcee with two children, worked as a dump truck driver and construction worker from approximately 1991 through 2011, when he was injured on the job. (R. at 36-37). After he was injured on the job, Plaintiff was unable to work and began receiving treatment for back pain and osteoarthritis. Id. In 2013, Plaintiff had back surgery, but continued to experience back pain, which he reported at his medical examinations and which his physician found unsurprising. (R. at 362-441). Plaintiff continued to experience back pain and beginning in 2015 used a cane on and off. (R. at 502). The record shows that he used the cane more frequently over time. (R. 502-640).

         In 2013 and 2015, Plaintiff filed applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) alleging a disability onset date of June 7, 2013. (R. at 243-55). After Plaintiff's applications were denied initially and on reconsideration, Plaintiff sought a hearing in front of an ALJ. (R. at 141-47, 153-66). Plaintiff was represented by counsel and appeared and testified before an ALJ at a hearing on April 18, 2017. (R. at 30-55). A vocational expert (“VE”) appeared and testified at the hearing. (R. at 51-53).

         Following the required five-step sequential analysis, [1] the ALJ found Plaintiff was not disabled under the meaning of the Social Security Act. (R. at 11-23). At step one, the ALJ found Plaintiff had not engaged in any substantial gainful activity since June 7, 2013. (R. at 14). At step two, the ALJ found Plaintiff suffered from severe impairments of degenerative disc disease of the lumbar spine, status post-surgery, and depression. Id. At step three, the ALJ determined Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 14-16).

         At step four, the ALJ set the Plaintiff's residual functional capacity (RFC) and determined that he could no longer perform any past relevant work. (R. at 17-21). The ALJ found Plaintiff had the ability to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) with the exception that Plaintiff could “stand or walk for four hours of an eight-hour workday.” (R. at 16). Additionally, the ALJ determined Plaintiff could frequently balance, occasionally climb ramps, climb stairs, kneel, couch, crawl, and could carry out simple repetitive tasks. Id. The ALJ discussed Plaintiff's use of a cane that his nurse practitioner recommended when deciding the RFC but did not include it in the RFC. (R. at 17). The ALJ expressed some skepticism regarding Plaintiff's use of the cane, noting that “there is no evidence that his cane was prescribed and its usage appears more occasional and situational rather than constant.” Id. Nonetheless, the ALJ noted Plaintiff's “pain, fatigue, reduced ranges of motion, positive clinical testing, stooped gait, sometimes need for a cane, and overall reduced function limit him to light work.” (R. at 20). And, when discussing evaluations done by the state agency examiners, the ALJ stated he assigned those evaluations “significant weight” because they were supported by “a range of physical exams and imaging studies as well as the claimant's on and off need to use a cane.” Id.

         Ultimately, at step five, the ALJ determined the Plaintiff could perform jobs that exist in significant numbers in the national economy. (R. at 21-22). In making this determination, the ALJ relied on the testimony of the VE, who was asked whether jobs exist in the national economy “for an individual with the claimant's age, education, work experience, and residual functional capacity.” Id.

         The ALJ decided that Plaintiff was not disabled under the Social Security Act. (R. at 22-23). Plaintiff requested review of the ALJ's decision, and the Appeals Council denied this request, adopting the ALJ's decision as the Commissioner's final decision on April 26, 2018. Plaintiff timely commenced the instant action, submitting a Statement of Errors alleging the ALJ erred in failing to include the Plaintiff's use of a cane in the hypothetical question posed to the VE after determining the Plaintiff used a cane “sometimes.” (ECF No. 12).

         On June 10, 2019, the Magistrate Judge issued a Report and Recommendation recommending that this Court reverse and remand the Commissioner's non-disability finding under 42 U.S.C. § 405(g) in accordance with the Plaintiff's Statement of Errors. (ECF No. 16). Defendant objected to the Magistrate Judge's Report and Recommendation arguing that the ALJ's decision that “Plaintiff was not disabled was and did not require a cane” was supported by substantial evidence. (ECF No. 17). Additionally, Defendant argues that a hypothetical question only needs to consist of those ailments included in the RFC. Id. Since the ALJ did not include cane usage in the RFC, the hypothetical question did not need to include cane usage. Id. The Plaintiff submitted a Response in Opposition to the Defendant's Objections. (ECF No. 18).

         II. STANDARD OF REVIEW

         Upon objection to a magistrate judge's report and recommendation, this Court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see Fed. R. Civ. P. 72(b). This de novo review, in turn, requires the Court to “determine whether the record as a whole contains substantial evidence to support the ALJ's decision” and to “determine whether the ALJ applied the correct legal criteria.” Inman v. Astrue, 920 F.Supp.2d 861, 863 (S.D. Ohio 2013). Substantial evidence means relevant evidence that “a reasonable mind might accept as adequate to support a conclusion.” Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quotation omitted). Substantial evidence constitutes “more than a mere scintilla, but only so much as would be required to prevent judgment as a matter of law against the Commissioner if this case were being tried to a jury.” Inman, 920 F.Supp.2d at 863 (citing Foster v. Bowen, 853 F.2d 483, 486 (6th Cir. 1988)). A reviewing court has “power to enter, upon pleadings and transcripts of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 505(g).

         III. ...


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