United States District Court, S.D. Ohio, Eastern Division
DANIEL M. WORDEN JR., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
Deavers Chief Magistrate Judge
OPINION & ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE.
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.
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.
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.
the required five-step sequential analysis,  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).
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.”
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.
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).
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).
STANDARD OF REVIEW
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. §