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Gearing v. Saul

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

September 25, 2019

ANDREW SAUL, Commissioner of Social Security, Defendant.




         Plaintiff, George John Gearing, (“Plaintiff” or “Gearing”), challenges the final decision of Defendant, Andrew Saul, [1] Commissioner of Social Security (“Commissioner”), denying his application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be VACATED and REMANDED for further consideration consistent with this opinion.


         In February 2013, Gearing filed an application for DIB, alleging a disability onset date of August 27, 2011 and claiming he was disabled due to lumbar disc disease with back and leg pain and muscle spasms, low back pain, frequent falls, depression and anxiety, and hypertension. (Transcript (“Tr.”) 197-98, 215.) The application was denied initially and upon reconsideration, and Gearing requested a hearing before an administrative law judge (“ALJ”). (Id. at 30.)

         On February 26, 2015, an ALJ held a hearing, during which Gearing, represented by a non-attorney representative, and an impartial vocational expert (“VE”) testified. (Id.) On May 1, 2015, the ALJ issued a written decision finding Gearing was not disabled. (Id. at 37.) The ALJ's decision became final on August 19, 2016, when the Appeals Council declined further review. (Id. at 1-7.) Gearing, through counsel, appealed that decision to this Court, which remanded the case as a result of the ALJ's failure to provide “sufficiently specific reasoning” to support the weight assigned to the opinion of treating physician Dr. Kurtz. Gearing v. Berryhill, No. 1:16cv2440, 2017 WL 3575765 (N.D. Ohio July 31, 2017), report and recommendation adopted by 2017 WL 3537601 (N.D. Ohio Aug. 17, 2017).

         The same ALJ heard the case on remand on April 10, 2018.[2] (Tr. 523-66.) On August 22, 2018, the ALJ issued a written decision finding Gearing was not disabled. (Id. at 498-517.) Given the earlier federal court remand, the Social Security Agency (“SSA”) allowed Gearing to bypass the Appeals Council and present his case for judicial review. (Id. at 495-96.)

         On December 11, 2018, Gearing filed his Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 11, 13, 14.) Gearing asserts the following assignments of error:

(1) The ALJ again improperly rejected the opinion of the treating specialist.
(2) The ALJ was not properly appointed under the United States Constitution at the time he heard the case.
(3) SSA failed to meet its [S]tep 5 burden because the VE's testimony was not time-relevant.
(4) An outright award is appropriate given the particular circumstances of this case.

(Doc. No. 11.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Gearing was born in March 1964 and was 49 years-old on the date last insured (Tr. 515), making him a “younger person” at all times relevant to his claim under social security regulations. See 20 C.F.R. § 404.1563(c). He has a limited education and is able to communicate in English. (Tr. 516.) He has past relevant work as a locomotive mechanic. (Id. at 515.)

         B. Medical Evidence During the Relevant Period[3]

         During the period relevant to his claim, [4] Gearing sought treatment from neurologist Lisa Kurtz, M.D. on three occasions. (Tr. 240-44, 491-94.) On November 22, 2011, Gearing complained that earlier in the week his leg suddenly went numb and he almost fell over. (Id. at 242.) Dr. Kurtz noted Gearing had a history of lumbar disc disease, and she observed that Gearing had an antalgic gait. (Id.). On May 10, 2012, Gearing complained that he had been falling a lot, that he had trouble walking, and that he was experiencing more weakness than pain in his legs. (Id. at 241.) In one instance, his leg reportedly went out and he fell into his dresser. (Id.) On November 22, 2012, Gearing complained that his legs were bothering him and that he had fallen a few times. (Id. at 240.) He reported pain, weakness, and sometimes numbness. (Id.)

         C. Medical Evidence After the Relevant Period

         On July 8, 2013, Dr. Kurtz completed a questionnaire on Gearing's behalf. (Id. at 259-60.) Dr. Kurtz indicated that she had been treating Gearing since September 2008. (Id. at 259.) She diagnosed low back pain, lumbar degenerative disc disease, and leg pain. (Id.) Clinical findings included antalgic gait with use of a cane. (Id.) Dr. Kurtz noted symptoms of fatigue, pain, balance problems, weakness, unstable walking, numbness/tingling/sensory disturbance, and increased muscle tension. (Id.) Dr. Kurtz opined that Gearing needed an assistive device to walk more than five feet due to balance problems and lower extremity weakness. (Id.) She also opined that, on average, Gearing was likely to be absent from work more than three times a month due to complications from his impairment or to receive necessary medical treatment. (Id. at 260). In addition, it was Dr. Kurtz's opinion that Gearing's fatigue, weakness, or pain was sufficiently severe to interfere often with his attention and concentration. (Id.) Dr. Kurtz concluded that Gearing was not able to work. (Id.)

         On August 22, 2013, Plaintiff again complained of leg and back pain. (Id. at 494.) He reported to Dr. Kurtz that he had trouble getting dressed that day and has “off and on days.” (Id.) He also complained that the medication he was taking at the time was not much help if his back was hurting badly and he was considering going to a pain clinic in the winter. (Id.) On exam, Dr. Kurtz noted no neurological changes and that Gearing was not using a cane that day. (Id.)

         An October 2013 MRI of Plaintiff's lumbar spine showed degenerative changes in the lumbar spine, most marked at ¶ 4-L5 and L5-S1. (Id. at 436-38.) A thoracic spine MRI from the same month showed mild degenerative changes. (Id. at 439-40.) A physical examination on October 28, 2013 revealed intact muscle strength in the left upper extremity, no asymmetrical weakness in his bilateral lower extremities, discomfort to palpation in the low back, no significant tenderness by percussing, decreased pinprick sensation in his bilateral lower extremities, and decreased vibration pinprick sensation distal to proximal distribution in the lower extremities. (Id. at 302.) His gait was not tested at that time. (Id.)

         On March 20, 2018, Dr. Kurtz completed another questionnaire Gearing's behalf. (Id. at 693-96.) She diagnosed lumbar disc herniation at ¶ 4-L5, lumbar disc bulging at ¶ 5-S1, low back pain, and leg pain. (Id. at 693.) Dr. Kurtz opined that Gearing could sit, stand, and walk for less than two hours a day, intermittently. (Id.) Gearing would need to shift positions at will, and would need to take unscheduled breaks. (Id.) Gearing could only rarely lift less than 10 pounds, and never more than 10 pounds. (Id. at 694.) He could never crouch, stoop (bend), or kneel, and could only rarely twist and climb stairs. (Id.) Dr. Kurtz also opined that Gearing would be off task 25% or more of the work day, and on average he was likely to be absent from work more than four times a month due to complications from his impairment or to receive necessary medical treatment. (Id. at 694-95.) Dr. Kurtz concluded that Gearing “has severe physical limitations due to his lumbar disc herniation at ¶ 4-L5 and lumbar disc bulging at ¶ 5-S1, which severely limits his work abilities and precludes his ability to work.” (Id. at 696.)

         D. State Agency Reports

         On July 11, 2013, state agency physician, Dr. Leslie Green, M.D., reviewed Gearing's medical record and concluded that an ALJ's formulation of Plaintiff's RFC for a previously adjudicated period (decision Dated: August 26, 2011) should be adopted based on Acquiescence Ruling (AR) 98-4(6) (“Drummond Ruling”).[5] (Tr. 141-42.) Dr. Green accordingly opined that Gearing was able to perform sedentary work; was unable to use ladders, ropes, or scaffolds; and could occasionally climb stairs or ramps. (Tr. 142).

         D. Hearing Testimony

         During the April 10, 2018 hearing, Gearing testified to the following:

• He hurt his back in 2007 and has been unable to work since that time because of pain in his lower back and legs. (Id. at 551-52.)
• He had one “good day” a week when he was able to do some work around the house and visit his mother at a nursing home. (Id. at 539-40.)
• On “bad days, ” he was unable to do anything and stayed home all day. (Id.)
• When his symptoms were really bad, he got burning sensation in his lower back that would shoot down into his legs. (Id. at 539.)
• He used a cane when he needed to stand up or walk for long periods of time. (Id. at 542.) He usually did not use a cane at home. (Id.)
• He started using a cane eight years ago. It had not been prescribed to him. (Id. at 532-33.)
• He could not ride in a car for very long because he needed to take breaks. (Id. at 548-49.)
• He did shop on his own for small bags of groceries. (Id.)
• He hired out his yardwork. (Id. at 535.)
• His pain interfered with his daily activities, and prevented him from riding his motorcycle and going on vacations. (Id. at 553-54.)
• His pain made it difficult to sleep. (Id. at 553.)
• He alternated between Soma and Flexeril for his pain because after a while one would stop working. (Id. at 542-43.) He only took these medications as needed - he did not take them every day. (Id. at 545.) If he was having a bad day, he would take one of these medications at night to help him sleep. (Id.) He did take two Aleve every morning. (Id. at 543-44.)
• He tried physical therapy and injections, but neither worked. (Id. at 537-38.)
• He had wanted to try aqua therapy, but he could not afford it. (Id. at 556.)
• He did not want to have surgery on his spine as he was afraid of the risks. (Id. at 549-51.)

         The VE testified Gearing had past work as a locomotive mechanic. (Id. at 561.) The ALJ then posed the following hypothetical question:

In this hypothetical, I'd like you to assume that the individual having the claimant's same age, education, and vocational background is limited to work at the sedentary exertional level, meaning that person can lift, carry, push or pull 20 pounds - I'm sorry, 10 pounds occasionally and less than that frequently. That person can stand or walk for two hours out of an eight-hour workday and can sit for six hours out of an eight-hour workday, except that individual cannot climb ladders, ...

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