IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Douglas G. Havens, :

 Plaintiff, :

 v. : Case No. 2:12-cv-0637

Commissioner of Social : JUDGE GEORGE C. SMITH

 Security, Magistrate Judge Kemp

 :

Defendant. 

 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Douglas G. Havens, filed this action seeking

review of a decision of the Commissioner of Social Security

denying his applications for disability insurance benefits and

supplemental security income. Those applications were filed on

February 22, 2008 and March 10, 2008 respectively, and alleged

that plaintiff became disabled on May 1, 2007.

After initial administrative denials of his applications,

plaintiff was given a hearing before an Administrative Law Judge

on June 28, 2010. In a decision dated December 3, 2010, the ALJ

denied benefits. That became the Commissioner’s final decision

on May 24, 2012, when the Appeals Council denied review. 

After plaintiff filed this case, the Commissioner filed the

administrative record on September 28, 2012. Plaintiff filed his

statement of specific errors on October 29, 2012. The

Commissioner filed a response on December 20, 2012. Plaintiff

filed a reply brief on January 4, 2013, and the case is now ready

to decide.

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff, who was 43 years old at the time of the

administrative hearing and who has a high school education,

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testified as follows. His testimony appears at pages 9-20 of the

administrative record.

Plaintiff last worked as a dump truck driver, a job which

also required him to shovel out material from the truck on a

fairly frequent basis. He also drove a garbage truck and picked

up residential garbage. He stopped working in 2007 when his job

was eliminated. He had looked for work elsewhere but was

unsuccessful. 

Physically, plaintiff testified to back problems which made

driving very uncomfortable. He had back surgery in the past. 

Due to a lack of money, he was not seeing a doctor and was taking

only over-the-counter medications. His pain radiated into his

left leg and that leg would become numb if he sat for too long. 

Standing was also painful. Medication does not relieve the pain. 

He also gets abdominal pain from standing too long. 

Plaintiff testified that he has always been heavy and

probably weighed more than 500 pounds. His sitting, standing and

walking were extremely limited, and he could not do any lifting. 

Most days, he lies on the floor and watches television. He also

sleeps a lot, but not well. He does very little in the way of

household chores or shopping. 

In response to questioning by his attorney, plaintiff said

that he is able to shower by himself but cannot bend over to tie

his shoes. He also has chronic cellulitis from swelling in his

legs. He has been told to keep his legs propped up during the

day to reduce swelling. He soaks his legs in salt water and

takes antibiotics to control this condition.

III. The Medical Records

The medical records in this case are found beginning on page

196 of the administrative record. The pertinent records can be

summarized as follows.

Plaintiff had been treated for cellulitis and hypertension

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from 2005 to 2007. A report from the practice group that

treated him indicated most of his problems were related to his

weight. No specific work-related limitations were noted.

A note dated May 19, 2008 shows that plaintiff had his back

surgery in 1998, which was nine years before he stopped working. 

An X-ray taken on that date showed some mild disc space narrowing

at L4-5 and L5-S1. The note also stated that plaintiff

complained of low back pain and left leg pain and numbness and

that he weighed over 500 pounds. (Tr. 211).

Dr. Smith performed a consultative examination on the same

day. Plaintiff reported a lifting injury in 1997 leading to pain

and eventually to surgery. He returned to work in 2001 but

continued to have symptoms. He also described cellulitis of both

legs, worse on the left. He could stand and walk only a few feet

but walking caused abdominal pain. Lifting was painful and

driving was difficult. On examination, plaintiff walked with his

legs far apart and could only bend to 45 degrees. His upper body

examination was normal, but as to the lower body, straight leg

raising to 30 degrees bilaterally caused back pain. He had

restriction in the range of motion of his back and both hips. 

The lower third of both legs showed evidence of cellulitis. Dr.

Smith diagnosed post-laminectomy pain with L5 radiculopathy in

the left leg, hypertension, and marked obesity. (Tr. 212-18).

Dr. McCloud, a state agency reviewer, completed a residual

functional capacity assessment form on June 30, 2008. He

concluded that plaintiff could do a limited range of light work

and that he had no environmental restrictions. He also noted

that Dr. Smith did not comment on functional limitations based on

his examination. (Tr. 219-26).

Dr. Smith did a second examination of plaintiff in 2010. He

noted that plaintiff’s present complaint was abdominal pain

brought on by walking one or two blocks and daily headaches. His

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weight still exceeded 500 pounds. Walking to the door and back

made him short of breath. He could not squat. The strength in 

his upper extremities was normal, and he had normal ranges of

motion in his hips, knees and ankles. His skin looked better

than at the prior examination. A chest X-ray was negative. Dr.

Smith did not know what was causing the abdominal pain. He

thought that plaintiff retained the ability to do sedentary work. 

(Tr. 237-39). He also filled out a form on which he stated that

plaintiff could not do activities such as shopping, traveling

alone, walking a block, using public transportation, or preparing

a meal, and that he had some environmental restrictions relating

to extreme temperatures, vibrations, noise, and moving machinery. 

Also, he could never climb stairs, ramps, ladders or scaffolds,

could never stoop, kneel, crouch, or crawl, and could only

occasionally balance or operate foot controls. Plaintiff also

had some limitations on his ability to push and pull and to reach

overhead or otherwise. (Tr. 244-49).

 IV. The Vocational Testimony

A vocational expert, Mr. Brown, also testified at the

administrative hearing. His testimony begins at page 20 of the

record. He characterized plaintiff’s past work as medium and

either unskilled or semi-skilled, although the residential

garbage collector job is usually performed at the very heavy

exertional level.

Mr. Brown was asked some questions about a hypothetical

person who could perform a limited range of light work, with some

restrictions on climbing, balancing, stooping, kneeling,

crouching and crawling. With those restrictions, that person

could, in Mr. Brown’s view, not do plaintiff’s past work. 

However, someone with those restrictions and who shared

plaintiff’s age, education and work experience could perform

certain jobs such as assembler, machine tender, and cleaner. 

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Those jobs existed in significant numbers in the state and

national economies. If such a person were further limited to

lifting only ten pounds occasionally, would need to change

positions every 30 to 45 minutes, and could sit for up to six

hours and stand or walk for up to two hours during a work day,

the person could still do some sedentary assembler and machine

tender jobs and could also work as an inspector. However, if the

person were as limited as plaintiff described in his testimony,

that person could not do those or any other jobs.

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 33

through 43 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured requirements for disability benefits through

December 31, 2012. Next, plaintiff had not engaged in

substantial gainful activity from his alleged onset date of May

1, 2007 through the date of the decision. As far as plaintiff’s

impairments are concerned, the ALJ found that plaintiff had

severe impairments including morbid obesity, chronic cellulitis,

degenerative disc disease of the lumbar spine at the L4-5 and L5-

S1 levels, and status post lumbar laminectomy. The ALJ also

found that these impairments did not, at any time, meet or equal

the requirements of any section of the Listing of Impairments (20

C.F.R. Part 404, Subpart P, Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to perform less than a full range of sedentary work, but

that he could lift and carry five pounds frequently and ten

pounds occasionally and that he could sit for six hours in a

workday but had to change positions every 30-45 minutes. The ALJ

found that, with these restrictions, plaintiff could not perform

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his past relevant work, but he could perform those jobs

identified by the vocational expert, such as hand packager,

cleaner and machine tender, and that significant numbers of such

jobs existed in the Ohio and national economies. Consequently,

the ALJ concluded that plaintiff was not entitled to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In his statement of specific errors, plaintiff raises a

single issue. He argues that the ALJ’s residual functional

capacity finding is not supported by substantial evidence. The

Court generally reviews the administrative decision of a Social

Security ALJ under this legal standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

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decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

Plaintiff has divided his argument into several sub-parts,

but each has to do with the way in which the ALJ dealt with Dr.

Smith’s 2010 examination and findings. In particular, he notes

that the postural limitations appearing in Dr. Smith’s report -

which the ALJ said he adopted - were not incorporated into the

hypothetical question posed to the vocational expert nor into the

ALJ’s residual functional capacity finding, and he also argues

that the vocational expert’s testimony could not be relied upon

because his testimony did not take these limitations into

account. Plaintiff makes the same argument with respect to the

limits on his ability to reach, push, pull and operate foot

controls. Finally, he asserts that the ALJ ignored Dr. Smith’s

opinion about plaintiff’s ability to engage in everyday

activities when assessing plaintiff’s credibility.

The Commissioner concedes that “the ALJ failed to include

certain elements of Dr. Smith’s opinion, such as some postural

and environmental limitations, in the RFC and his hypotheticals

posed to the VE.” Defendant’s Memorandum in Opposition, Doc. 13,

at 6. However, the Commissioner argues that the omission of

postural limitations for a claimant limited to less than a full

range of sedentary work is harmless error because such work does

not usually require these types of activities. The Commissioner

does appear to agree that if plaintiff were unable to stoop, the

number of sedentary jobs he could do would be reduced, but

asserts that based on Dr. McCloud’s opinion and on plaintiff’s

description of his activities, it is “likely” that he can do some

stooping. Id. at 8. The Commissioner also contends that

restrictions on pushing, pulling, reaching and on using foot

controls are largely irrelevant to the performance of sedentary

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work, as are the various environmental limitations found by Dr.

Smith. Finally, the Commissioner defends the ALJ’s credibility

assessment as being supported by substantial evidence. In reply,

plaintiff asks the Court to disregard the Commissioner’s post hoc

rationalization of the ALJ’s decision - especially as it relates

to the ability to stoop - and to remand the matter for further

consideration.

Plaintiff is correct that the ALJ expressly stated in his

decision that he “adopt[ed] the opinions of Dr. Smith, the

consulting internist” and rejected Dr. McCloud’s opinions

“because they are not consistent with the other medical evidence

....” (Tr. 37-38). In light of this statement, it is hard to

accept the Commissioner’s argument that the ALJ actually

concluded that plaintiff could do occasional stooping, since Dr.

McCloud, whose opinion was rejected, said that plaintiff could

stoop, and Dr. Smith, whose opinion was accepted, said he could

not. Further, the ALJ made no reference to that ability when

discussing plaintiff’s credibility, and being able to put on

one’s pants (in a very restricted way, as plaintiff testified) or

to bathe or get something out of a refrigerator cannot reasonably

be equated to the ability to performing stooping on an occasional

basis during an eight-hour work day. Thus, regardless of how

much the other restrictions imposed by Dr. Smith might have

eroded (or not eroded) the sedentary job base, the Court is left

with an administrative decision which both finds the plaintiff

unable to stoop and which fails to factor that limitation into

the ultimate residual functional capacity finding. The

Commissioner’s own memorandum indicates that under SSR 96-9p,

which the Court quotes here, “[a] complete inability to stoop

would significantly erode the unskilled sedentary occupational

base and a finding that the individual is disabled would usually

apply, but restriction to occasional stooping should, by itself,

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only minimally erode the unskilled occupational base of sedentary

work.” Thus, it is critical to a determination of disability in

this case whether plaintiff can or cannot stoop occasionally.

The omission of that limitation in the questions posed to

Mr. Brown is understandable, given that Dr. Smith’s opinion about

stooping was rendered after the administrative hearing was held. 

The failure to acknowledge the issue or to deal with it in any

fashion in the administrative decision is error, however, and it

is not harmless. The Commissioner has not argued that any of the

jobs identified by the vocational expert do not require stooping,

nor would the record support such an argument. This Court has

remanded such cases in the past, finding that although reversal

is not required in light of SSR 96-9p’s statement that the

inability to stoop “usually” erodes a sedentary job base, “SSR

96-9p does not demand an automatic finding of disabled when a

claimant, who is limited to sedentary work, has a complete

inability to stoop.” Snyder v. Commissioner of Social Sec., 2009

WL 891771, *4, 141 Soc.Sec.Rep.Serv. 400 (S.D. Ohio March 31,

2009). See also Ortiz v. Astrue, 2010 WL 3036736 (N.D. Ohio July

30 ,2010)(when “it is unclear whether Plaintiff could actually

perform the sedentary jobs identified by the VE” an error such as

the one committed here “does not amount to harmless error and is

reason to remand”). In other words, the Court cannot say with

certainty that “had the ALJ correctly applied the [regulation],

he would have ultimately reached the same conclusion.” Johnson

v. Astrue, 2010 WL 5559542 (N.D. Ohio Dec. 3, 2010), adopted and

affirmed 2010 WL 5478604 (N.D. Ohio Dec. 30, 2010). It is

entirely possible that the vocational testimony, had it taken the

inability to stoop into account, would have been markedly

different, or that had the ALJ followed SSR 96-9p, he would have

reached a different result (or at least made an effort to clarify

the record). Plaintiff was therefore prejudiced by the ALJ’s

error, and a remand is necessary.

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VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be sustained to the extent that

the case be remanded to the Commissioner pursuant to 42 U.S.C.

§405(g), sentence four.

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection

is made, together with supporting authority for the objection(s). 

A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

 United States Magistrate Judge

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