UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION AT DAYTON 

DAPHNE DAVIS, 

Plaintiff, 

vs. 

COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION, 

Defendant. 

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Case No. 3:18-cv-253 

District Judge Thomas M. Rose 

Magistrate Judge Sharon L. Ovington 

REPORT AND RECOMMENDATIONS1

I. Introduction 

After Plaintiff Daphne Davis worked for many years in the food-service industry, 

she began having significant problems with her right knee. Unfortunately, conservative 

treatments were unsuccessful and she underwent a total knee replacement. After surgery, 

Plaintiff was unable to continue working fulltime and applied for period of disability, 

Disability Insurance Benefits, and Supplemental Security Income. Her claims were 

denied initially and upon reconsideration. After a hearing, Administrative Law Judge 

(ALJ) Emily Ruth Statum concluded that Plaintiff was not eligible for benefits because 

she is not under a “disability” as defined in the Social Security Act. 

The Appeals Council denied Plaintiff’s request for review, and she filed a previous 

action in United States District Court for the Southern District of Ohio. Upon the parties’ 

 

1

 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations. 
2

Joint Motion to Remand, the Court vacated the Commissioner’s decision and remanded 

the case pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative 

proceedings. See Davis v. Commissioner of Social Security, 3:16cv11 (S.D. Ohio July 

11, 2016) (Rice, D.J.). 

Upon remand, Plaintiff achieved partial success: ALJ Elizabeth A. Motta found 

that she was under a disability beginning on April 20, 2016 but was not disabled within 

the meaning of the Social Security Act prior to that date. Thus, only the period of time 

between June 18, 2012 and April 20, 2016 is at issue in this case. 

The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #13), the 

Commissioner’s Memorandum in Opposition (Doc. #14), Plaintiff’s Reply (Doc. #15), 

and the administrative record (Doc. #10). 

II. Background 

Plaintiff asserts that she has been under a “disability” since June 8, 2012. She was 

forty-six years old at that time and was therefore considered a “younger person” under 

Social Security Regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c). On April 21, 

2016, Plaintiff turned fifty years old and was accordingly a person “closely approaching 

advanced age.” See id. §§ 404.1563(d), 416.963(d). She has a ninth-grade—or 

“limited”—education. See id. §§ 404.1564(b)(3), 416.964(b)(3).2

 

2

 The remaining citations will identify the pertinent Disability Insurance Benefits Regulations with full 

knowledge of the corresponding Supplemental Security Income Regulations. 
3

A. Plaintiff’s Testimony 

Plaintiff testified at the hearing before ALJ Motta that she has had four knee 

surgeries, including a total knee replacement and cyst removal. (Doc. #10, PageID 

#1846). She had knee-replacement surgery in 2012 and “it’s been a problem since.” Id.

at 1847. She is not able to walk normally, she has back and knee pain, and she cannot 

fully straighten her leg. Id. at 1851. After surgery, Plaintiff attended physical therapy 

until her insurance stopped covering it. Id. at 1859. She wanted more physical therapy 

because it helped straighten her leg. Id. 

She still has swelling in her knee and leg. She was prescribed special stockings to 

eliminate swelling. Id. at 1860. Three or four years before the hearing, her family-care 

doctor, Dr. Brown, prescribed a cane because of Plaintiff’s difficulty walking and so that 

she would not fall. Id. at 1847. Luckily, she has not fallen because she always uses her 

cane. Id. at 1861. Plaintiff also uses a brace to help her walk. Id. at 1860. At the 

grocery store, she uses an electric cart because she does not want to fall. 

In addition, Plaintiff has problems with her left shoulder. She had surgery to 

repair a torn ligament in it in November 2016, about a month before the hearing. Id. at 

1850. It was still sore at the hearing. Id. 

Plaintiff has sciatic nerve problems that cause pain in her mid-back. Id. at 1848. 

As a result, she has trouble sitting in hard chairs. Id. Fortunately, her work gave her a 

soft chair to sit in. Id. Plaintiff takes Percocet for pain and has had cortisone shots in the 

past. Id. at 1850. 
4

Plaintiff has sleep apnea and has to use a CPAP machine every night. Id. at 1848-

49. She also has some breathing problems and uses inhalers and a breathing machine. 

Id. at 1853. 

Plaintiff struggles with depression. Her former doctor prescribed her medication. 

Id. at 1851. However, he stopped accepting CareSource, her health insurance. At the 

time of the hearing, she was seeing Victoria Brookshire, a nurse practitioner in Huber 

Heights. Id. at 1849. Plaintiff believes she will prescribe medications in the future. Id.

at 1851. Plaintiff sought some treatment from Samaritan Behavioral Health but has not 

been there since 2014. Id. at 1852. 

Plaintiff lives in an apartment with her 18-year-old daughter. Id. at 1841. She 

usually drives to her part-time job three times a week. Id. If she needs to go anywhere 

else, her mother drives her. Id. at 1841-42. Plaintiff does not leave her apartment as 

much as she used to but her mother and sister try to get her out when they can. Id. at 

1856. She visits with them and goes to church on Sundays. Id. at 1856-57. When asked 

if she had a significant other, boyfriend, or anything like that, Plaintiff responded, “Not 

really. I don’t call him that.” Id. at 1856. 

During the day, she reads her Jehovah book, watches TV, and plays games on her 

phone. Id. at 1857-58. She is generally able to use a computer. Id. at 1857. After her 

shoulder surgery, she had to use a long stick to help her type so that she did not have to 

move her arm. Id. She can take a bath or shower but it was more difficult after her 

shoulder surgery. Id. After surgery, she had a “home care lady” helping her but her 

doctor told her they were too much. For the most part, Plaintiff can dress herself. Id. at 
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1857. She has trouble putting on stockings. Id. At the time of the hearing, her sister 

helped her get dressed for work. Id. Her daughter does most of the chores around the 

apartment, including preparing meals and doing laundry. Id. at 1855-56. Plaintiff is able 

to go to the store but uses an electric cart. Id. at 1856. 

Plaintiff has worked at many restaurants. For example, she worked at KFC as a 

shift manager and assistant manager. Id. at 1843. She also worked for Golden Corral, 

Taco Bell, Lee’s Famous Recipe, and Wendy’s. Id. at 1844. At the time of the hearing, 

she was working as a receptionist at Extended Stay America. Id. at 1845. She usually 

worked about 8 hours a day, 3 days a week, for a total of 23 to 24 hours. Id. at 1845, 

1854. She checks people in and directs them to their rooms. Id. at 1884. She spends 

most of her time at work sitting. Id. at 1854. However, she cannot sit continuously for 

hours at a time and has to get up and move around a little bit before sitting back down. 

Id. at 1859. If her employer offered her more hours, she would not take them because she 

does not think she would be able to work more. Id. She has to go to work in pain 

because she cannot take her medications and be able to function. Id. When she gets 

home, she takes her medication to make it through the rest of the day. Id. at 1860. 

B. Medical Opinions 

i. Morris Brown, M.D. 

Plaintiff’s primary-care physician, Dr. Brown, completed a medical functional 

capacity assessment and a basic medical assessment in September 2011 (almost a year 

before Plaintiff’s amended alleged onset date). He opined that Plaintiff was markedly 

limited in every functional category. Id. at 2545. He indicated that she had a right 
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meniscal tear that required surgery. Id. at 2546. Her health status was poor but stable. 

Id. He concluded that her limitations were expected to last twelve or more months and 

Plaintiff was unemployable. Id. at 2545. 

On January 21, 2014, Dr. Brown indicated in his treatment notes that Plaintiff 

reported sharp pain in her lumbar spine and right knee. Id. at 1556. The pain interfered 

with her sleep and work. Id. It was present for more than twelve months. Id. Dr. Brown 

concluded that she cannot sit for more than ten minutes, cannot work, and is permanently 

disabled. Id. at 1558. 

ii. Amita Oza, M.D. 

Dr. Oza examined Plaintiff on January 6, 2012. She found, “[Plaintiff] is a 45-

year-old female patient who had injury to her right knee status post two surgeries, now 

has significant arthritis with constant swelling and pain.” Id. at 684. Based on her 

examination, Dr. Oza opined that Plaintiff could do sedentary work with a change in 

position every fifteen to twenty minutes. Id. 

iii. William Bolz, M.D., Esberdado Villanueva, M.D., Caroline Lewin, 

Ph.D. 

Dr. Bolz reviewed Plaintiff records in November 2012. He found that Plaintiff has 

one non-severe impairment, asthma, and two severe impairments—reconstructive surgery 

of a weight bearing joint and essential hypertension. Id. at 217. Dr. Bolz opined that she 

could lift and/or carry twenty pounds occasionally and ten pounds frequently. Id. at 218. 

She can stand and/or walk for a total of four hours—in no more than thirty-minute 

intervals—and sit for six hours in an eight-hour workday. Id. She can occasionally push 
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and/or pull with her right lower extremity. Id. She can never climb ladders, ropes, or 

scaffolds; can occasionally kneel, crouch, crawl, and climb ramps and stairs; and can 

frequently balance and stoop. Id. at 218-19. She should avoid concentrated exposure to 

vibration; avoid even moderate exposure to fumes, odors, dusts, gases, poor ventilation, 

etc.; and avoid all exposure to hazards such as machinery and heights. Id. at 219. Dr. 

Bolz concluded that Plaintiff is not under a disability. Id. at 221-22. 

Dr. Lewin and Dr. Villanueva reviewed Plaintiff’s records in January 2013. Dr. 

Lewin found one additional non-severe impairment, affective disorders. Id. at 246. Dr. 

Villanueva affirmed Dr. Bolz’s assessment. Id. at 248-52. 

III. Standard of Review 

The Social Security Administration provides Disability Insurance Benefits and 

Supplemental Security Income to individuals who are under a “disability,” among other 

eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42 

U.S.C. §§ 423(a)(1), 1382(a). The term “disability”—as defined by the Social Security 

Act—has specialized meaning of limited scope. It encompasses “any medically 

determinable physical or mental impairment” that precludes an applicant from 

performing a significant paid job—i.e., “substantial gainful activity,” in Social Security 

lexicon. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70. 

Judicial review of an ALJ’s non-disability decision proceeds along two lines: 

“whether the ALJ applied the correct legal standards and whether the findings of the ALJ 

are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 

406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 
8

2007). Review for substantial evidence is not driven by whether the Court agrees or 

disagrees with the ALJ’s factual findings or by whether the administrative record 

contains evidence contrary to those factual findings. Gentry v. Comm’r of Soc. Sec., 741 

F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 

2007). Instead, the ALJ’s factual findings are upheld if the substantial-evidence standard 

is met—that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to 

support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc. 

Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a 

scintilla of evidence but less than a preponderance . . . .” Rogers, 486 F.3d at 241 

(citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722. 

The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal 

criteria—may result in reversal even when the record contains substantial evidence 

supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 

651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial 

evidence, ‘a decision of the Commissioner will not be upheld where the SSA fails to 

follow its own regulations and where that error prejudices a claimant on the merits or 

deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting in part 

Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47 

(6th Cir. 2004)). 

IV. The ALJ’s Decision 

 As noted previously, on remand it fell to ALJ Motta to evaluate the evidence 

connected to Plaintiff’s applications for benefits. She did so by considering each of the 
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five sequential steps set forth in the Social Security Regulations. See 20 C.F.R. § 

404.1520. She reached the following main conclusions: 

 Step 1: Plaintiff has not engaged in substantial gainful employment since June 

18, 2012. 

 Step 2: She has the severe impairments of degenerative changes of the 

lumbosacral spine; history of total knee replacement; mild to 

moderate degenerative changes in the right hip; mild degenerative 

changes in the left knee; and overweight to mildly obese condition. 

 Step 3: She does not have an impairment or combination of impairments that 

meets or equals the severity of one in the Commissioner’s Listing of 

Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. 

 Step 4: Her residual functional capacity, or the most she could do despite her 

impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 

(6th Cir. 2002), consists of “sedentary work ... subject to the 

following limitations: (1) lifting and carrying up to 20 pounds 

occasionally and 10 pounds frequently; (2) sitting for six hours during 

an 8-hour workday; (3) standing and/or walking limited to a combined 

total of four hours during an 8-hour workday; (4) occasional postural 

activity, climbing ramps and/or stairs, balancing, stooping, kneeling, 

crouching, and crawling; (5) no climbing of ladders, ropes, or 

scaffolds; (6) no exposure to hazards, such as dangerous machinery or 

unprotected heights; (7) no concentrated exposure to vibration; (8) 

occasional use of foot controls on the right; (9) must be permitted the 

opportunity to alternate between sitting and standing for five minutes 

per hour.” 

 Step 4: She is unable to perform any of her past relevant work. 

 Step 5: Prior to April 20, 2016, she could perform a significant number of 

jobs that existed in the national economy. Beginning on April 20, 

2016, there are no jobs that exist in significant numbers in the national 

economy that Plaintiff could perform. 

(Doc. #10, PageID #s 1807-25). These main findings led the ALJ to ultimately conclude 

that Plaintiff was not under a benefits-qualifying disability prior to April 20, 2016, but 

became disabled beginning on that date. Id. at 1824-25. 
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V. Discussion 

The Listing of Impairments “describes impairments the [Social Security 

Administration] considers to be ‘severe enough to prevent an individual from doing any 

gainful activity, regardless of his or her age, education, or work experience.’” Rabbers, 

582 F.3d at 653 (quoting 20 C.F.R. § 404.1525(a)). Each listing identifies “the objective 

medical and other findings needed to satisfy the criteria of that listing.” 20 C.F.R. § 

404.1525(c)(3). The plaintiff bears the burden of establishing that she is disabled under 

the Listings. See Rabbers, 582 F.3d at 653. 

In the present case, ALJ Motta concluded that Plaintiff’s musculoskeletal 

impairments do not meet “the requirements of any impairment or combination of 

impairments listed in section 1.00, et seq, of Appendix 1.” (Doc. #10, PageID #1816). 

Plaintiff contends that the ALJ erred by finding that her impairments do not meet or 

medically equal Listing 1.02 or 1.03 and by applying the incorrect standard. 

Listing 1.02 provides: 

Major dysfunction of a joint(s) (due to any cause): 

Characterized by gross anatomical deformity (e.g., 

subluxation, contracture, bony or fibrous ankylosis, instability) 

and chronic joint pain and stiffness with signs of limitation of 

motion or other abnormal motion of the affected joint(s), and 

findings on appropriate medically acceptable imaging of joint 

space narrowing, bony destruction, or ankylosis of the affected 

joint(s). With: 

A. Involvement of one major peripheral weight-bearing 

joint (i.e., hip, knee, or ankle), resulting in inability to 

ambulate effectively, as defined in 1.00B2b; 

or 

B. Involvement of one major peripheral joint in each upper 

extremity (i.e., shoulder, elbow, or wrist-hand), 
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resulting in inability to perform fine and gross 

movements effectively, as defined in 1.00B2c. 

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.02. 

And, Listing 1.03 requires: “Reconstructive surgery or surgical arthrodesis of a 

major weight-bearing joint, with inability to ambulate effectively, as defined in 1.00B2b, 

and return to effective ambulation did not occur, or is not expected to occur, within 12 

months of onset.” Id. § 1.03. 

Under either listing, an individual must have an “inability to ambulate 

effectively”—defined by the Social Security Administration as “an extreme limitation of 

the ability to walk; i.e., an impairment(s) that interferes very seriously with the 

individual’s ability to independently initiate, sustain, or complete activities.” Id. § 

1.00B2b1. Ineffective ambulation is generally defined “as having insufficient lower 

extremity functioning ... to permit independent ambulation without the use of a handheld assistive device(s) that limits the functioning of both upper extremities....” Id. “To 

ambulate effectively, individuals must be capable of sustaining a reasonable walking pace 

over a sufficient distance to be able to carry out activities of daily living. They must have 

the ability to travel without companion assistance to and from a place of employment or 

school.” Id. § 1.00B2b2. The Administration provides examples of ineffective 

ambulation, including, but limited to, “the inability to walk without the use of a walker, 

two crutches or two canes, ... the inability to carry out routine ambulatory activities, such 

as shopping and banking, and the inability to climb a few steps at a reasonable pace with 

the use of a single hand rail.” Id. Importantly, “The ability to walk independently about 
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one’s home without the use of assistive devices does not, in and of itself, constitute 

effective ambulation.” Id. 

ALJ Motta found, “[e]ven considering the claimant’s rather mild lumbar 

impairment, the objective and clinical findings do not establish that the claimant cannot 

ambulate effectively ....” (Doc. #10, PageID #1816). The ALJ acknowledged that 

Plaintiff uses a cane when ambulating, but nonetheless concluded, “the medical necessity 

for an ambulatory device is less than fully supported with the exception of reasonable 

recovery periods for surgery that did not last for any period approaching 12 consecutive 

months.” Id. She later explained, “There is no evidence a cane is mandatory even 

though for unclear reasons she started using this regularly in the later record, more than 2 

years after the alleged disability onset date and was first noted to use a cane regularly in 

October of 2014 when she went to Dr. Brown’s office using a cane and brought disability 

papers for him to sign.” Id. at 1818 (citation omitted). Substantial evidence does not 

support the ALJ’s conclusion. 

In August 2012, immediately after her knee-replacement surgery, Plaintiff’s 

surgeon, Dr. Cook, noted that her treatment included use of a walker. Id. at 1393, 1396. 

Several months later, when Plaintiff was 9 months “postop procedure,” Dr. Cook 

indicated that her treatment included use of a cane and physical therapy (which was put 

on hold because Plaintiff was not making any progress). Id. at 2644. He also noted that 

Plaintiff was using a JAS brace. Id. at 2646. And, four months later—more than one 

year after her total-knee replacement—Dr. Cook reiterated that her treatment included 

use of a cane. Id. at 2641. 
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Plaintiff use of a cane (or need for a cane) is also documented elsewhere in the 

record. Dr. Kramer, an examining consultant, indicated in January 2013 that she was 

using a cane and was “somewhat slow and unsteady on her feet.” Id. at 1419. 

Moreover, Plaintiff’s physical therapist noted in August 2012 that Plaintiff was a fall risk. 

Id. at 1020. Likewise, in September 2013, her physical therapist noted that she advised 

Plaintiff to use her cane for ambulation to help reduce limping and consequently reduce 

her back pain. Id. at 1453. Together, this evidence reveals a medical reason for Plaintiff 

to use a cane. 

The ALJ also found that there was a substantial gap in Plaintiff’s treatment from 

2014 to 2016. According to the ALJ, Plaintiff only saw Dr. Brown on “several 

occasions, but those records contain minimal clinical findings and do not support or 

establish a basis for finding that the claimant could not ambulate effectively at relevant 

period herein.” Id. at 1816. Substantial evidence does not support the ALJ’s finding. 

In 2014 and 2015, Plaintiff saw Dr. Brown twenty-one times—almost every 

month. Further, during the months that Plaintiff did not see Dr. Brown, she saw Latonya 

Dunson, a nurse practitioner at Dr. Brown’s office (February, September, and October 

2014). During those appointments, Dr. Brown documented his clinical findings. For 

instance, in April 2014, examination revealed tenderness and limited range of motion in 

Plaintiff’s right knee and back pain. Id. at 2375-76. A month later, Dr. Brown noted 

abnormal motor strength, tenderness, limited range of motion, back spasms, pain to 

palpation, and decreased range of motion. Id. at 2373-75. In June 2015, Dr. Brown 

indicated that, upon exam, Plaintiff was in moderate distress and was chronically ill. Id. 
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at 2336-39. She had limited ambulation with a cane. Id. at 2338. Her right knee 

revealed contracture, malalignment, tenderness, limited range of motion, bony deformity, 

and edema. Id. at 2338-39. Her back showed abnormal lordosis, decreased range of 

motion, and bilateral sacroiliac tenderness. Id. at 2339. In July 2015, Dr. Brown 

observed that Plaintiff’s right knee exhibited warmth, swelling, crepitus, and retraction 20 

degrees. Id. at 2333. Her right knee had limited range of motion, including decreased 

flexion, extension, medial rotation, and lateral rotation. Id. at 2335. Further, motion 

elicited pain. 

Additionally, in 2014, during Plaintiff’s “substantial gap” in treatment, she saw 

Dr. Soin, a pain specialist, on eight separate occasions. Id. at 1638-65, 2067-77. In 

January 2014, Dr. Soin noted that Plaintiff’s right leg was swollen. Id. at 1652. When he 

administered Spurlings test,3

 she had pain radiate down into her opposite limb. Id. at 

1653. There were also some trigger points felt in and around her paraspinal cervical 

muscles. Id. In her lower lumbar spine, he noted pain to palpation. Id. “Finger to floor 

flexion with the knee extended was less than 90 degrees and limited by pain and stiffness, 

extension to 30 degrees was limited due to pain, as well as lateral bending to 25 degrees.” 

Id. Plaintiff’s straight leg test was positive and elicited ipsilateral pain in the lower 

lumbar spine. Id. She had “radiculopathic symptoms with pain traveling down the lower 

extremity ....” Id. A few days after Plaintiff’s first appointment, Dr. Soin performed a 

 

3

 According to Dr. Soin, Spurlings test is “performed by extending the neck, rotating the head, and then 

[applying] downward pressure on [the] head.” (Doc. #10, PageID #1653). 
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transforaminal epidural steroid injection. Id. at 1648. Two weeks later, she had a second 

injection. Id. at 1645. 

In February 2014, Plaintiff’s exam yielded almost identical results. Id. at 1641-43. 

Dr. Soin noted that injections only helped short term. Id. at 1643. On February 25, 2014, 

Dr. Soin performed a nerve block. Id. at 1638. Unfortunately, Plaintiff’s pain continued, 

as did her limitations. In March 2014, Dr. Soin similarly noted, “Finger to floor flexion 

with the knee extended was less than 90 degrees and limited by pain and stiffness, 

extension to 30 degrees was limited due to pain, as well as lateral bending to 25 degrees.” 

Id. at 2073. Dr. Soin performed a facet injection procedure in May 2014 and a second in 

September 2014. Id. at 2067, 2075. In sum, Dr. Brown and Dr. Soin’s treatment notes 

indicate Plaintiff received treatment in 2014 and 2015, and both documented significant 

clinical findings. Accordingly, substantial evidence does not support the ALJ’s 

conclusion that there was a substantial gap in Plaintiff’s treatment during 2014 and 2015 

with little clinical findings. 

The ALJ found that even if Plaintiff preferred to use a cane, the record does not 

establish that an ambulatory device effecting the use of both hands is necessary.” But an 

individual who does not use a two-handed assistive device can be found unable to 

ambulate effectively. See Dobson v. Astrue, 267 F. App’x 610, 612 (9th Cir. 2008) (“The 

full definition of ‘inability to ambulate effectively’ in Listing 1.00B2b and the 

Commissioner’s commentary on effective ambulation in the Federal Register make clear, 

however, that the use of a two-handed assistive device is not necessary to establish 

ineffective ambulation under this Listing.”); Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 
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2009) (“The regulations state that ‘ineffective ambulation’ is ‘defined generally’ as 

requiring the use of a hand-held assistive device that limits the functioning of both upper 

extremities. But the regulations further provide a nonexhaustive list of examples of 

ineffective ambulation, such as ... the inability to walk a block at a reasonable pace on 

rough or uneven surfaces ....”) (citation omitted); Siefert v. Comm’r of Soc. Sec., No. 

2:16-CV-162, 2017 WL 2828733, at *5 (S.D. Ohio June 30, 2017) (Kemp, M.J.) report 

and recommendation adopted, 2017 WL 4083583 (S.D. Ohio Sept. 14, 2017) (Marbley, 

D.J.) (“Walking with two hand-held assistive devices is not the only way to satisfy that 

criterion. Section 1.00B2b explicitly says that examples of such an inability ‘include, but 

are not limited to, the inability to walk without the use of a walker, two crutches, or two 

canes ....’”); Laurain v. Comm’r of Soc. Sec., No. 17-13462, 2019 WL 472308, at *8 

(E.D. Mich. Jan. 3, 2019), report and recommendation adopted, 2019 WL 462981 (E.D. 

Mich. Feb. 6, 2019) (“Listing 1.00B2b(2) notes that ‘ineffective ambulation’ is not 

limited to ‘the inability to walk without the use of a walker, two crutches or two canes,’ 

but can include, for example, ‘the inability ... to use standard public transportation ....’” 

(citation omitted); but c.f. Mills v. Comm’r of Soc. Sec., No. 1:11-CV-321, 2012 WL 

1715042, at *9 (S.D. Ohio May 15, 2012), report and recommendation adopted, 2012 

WL 4009081 (S.D. Ohio Aug. 29, 2012) (“[T]he ALJ’s determination that plaintiff’s 

knee impairment does not meet or equal Listing 1.02(A) finds substantial support in the 

record. There is no evidence plaintiff has ‘an extreme limitation of the ability to walk’ as 

defined under 1.00(B)(2)(b)(l) as she does not require the use ‘of a hand-held assistive 

device(s) that limits the functioning of both upper extremities.’”). Indeed, the 
17

Regulations set forth several examples of ineffective ambulation; for instance, “the 

inability to walk without the use of a walker, two crutches or two canes, ... the inability 

to carry out routine ambulatory activities, such as shopping and banking, and the inability 

to climb a few steps at a reasonable pace with the use of a single hand rail.” 20 C.F.R. Pt. 

404, Subpt. P, App. 1, § 1.00B2b2. 

The record establishes that Plaintiff had “an extreme limitation of the ability to 

walk” during the time period in question. Id. § 1.00B2b1. After her total right-knee 

arthroplasty, she was unable to completely straighten her leg. This led to two 

manipulations under anesthesia—on August 7, 2012 and September 21, 2012. (Doc. #10, 

PageID #s 854, 1399). Despite those manipulations and “aggressive physical therapy,” 

Plaintiff continued to experience decreased range of motion and persistent pain. Id. at 

1387, 1390, 1395, 2641. At the time of the hearing, she used a cane and wore a knee 

brace to help her walk. Id. at 1860. 

Importantly, however, Plaintiff’s right knee issues are not the only reason she uses 

a cane. Plaintiff has problems with her back, right hip, and left knee. The ALJ 

recognized, “[Plaintiff] has mild degenerative changes in the lumbar spine, right hip, and 

left knee.” Id. at 1816. However, the ALJ minimalized these conditions. 

For example, in September 2013, Dr. Le noted that Plaintiff had a positive straight 

leg raise on the right side and quad atrophy. Id. at 1748. She had “persistent pain in the 

knee area but more so up and proximally in the right buttock.” Id. Dr. Le opined that her 

pain was consistent with sciatica. Id. In January 2014, Dr. Soin indicated that her 

straight leg raise was positive and it elicited ipsilateral pain in the lower lumbar spine. Id.
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at 1653. She had radiculopathic symptoms with pain traveling down her leg. Id. 

Further, Plaintiff reported intermittent numbness and tingling in her leg. Id. In 

November 2014, Dr. Brown indicated that Plaintiff’s symptoms include weakness and 

numbness of her legs and feet. Id. at 2258. Likewise, in February 2015, Dr. Brown 

noted that Plaintiff has lower extremity weakness. Id. at 2350. Because of Plaintiff’s 

right sciatic nerve pain, when she sits, she leans to the left. Id. at 2350. An MRI of 

Plaintiff’s lumbar spine revealed mild-to-moderate lumbar spondylotic changes. Id. at 

1698. In addition, an x-ray of Plaintiff’s right hip revealed mild-to-moderate narrowing 

of her right hip joint space with associated bony spurring of the acetabulum and mild 

sclerosis of the femoral head. Id. at 2399. 

Together, these impairments seriously interfere with Plaintiff’s ability to carry out 

activities of daily living. Plaintiff testified that she uses a cart at the grocery store so that 

she does not fall. Id. at 1861. Further, she cannot climb stairs without using a handrail. 

Id. at 1860; see 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00B2b2 (“examples of 

ineffective ambulation include, but are not limited to ... the inability to carry out routine 

ambulatory activities, such as shopping and banking, and the inability to climb a few 

steps at a reasonable pace with the use of a single hand rail.”). 

Her daughter takes care of most of the chores—including laundry and cooking—

around their apartment. (Doc. #10, PageID #s 1855-56). Plaintiff does not prepare meals 

because she cannot stand up a lot to cook. If she makes any food, it is a sandwich or 

something in the microwave. Id. at 1855. She is able to shower and can generally dress 

herself. Id. at 1857. She has trouble putting on stockings and her sister helps her get 
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dressed for work. Id. When Plaintiff goes to work, she does not take her medication so 

she is able to function. Id. at 1859. As a result, she is in a substantial amount of pain. Id.

at 1859-60. She only drives three times a week, and her mother drives her everywhere 

else. Id. at 1841. Together, this evidence demonstrates that Plaintiff has an inability to 

ambulate effectively. 

Turning to Listing 1.03’s other requirement, Plaintiff must have had reconstructive 

surgery ... of a major weight-bearing joint. And she did. On July 2, 2012, Dr. Cook 

performed a total right-knee arthroplasty—also known as a knee replacement. (Doc. #10, 

PageID #804); see 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(F) (“Major joints refers to 

the major peripheral joints, which are the ... knee....”). 

Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken. 

Under Sentence 4 of 42 U.S.C. § 405(g), the Court has authority to affirm, modify, 

or reverse the Commissioner's decision “with or without remanding the cause for 

rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand 

under sentence 4 may result in the need for further proceedings or an immediate award of 

benefits. E.g., Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 410 (6th Cir. 2009); Felisky 

v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994). “Generally, benefits may be awarded 

immediately ‘only if all essential factual issues have been resolved and the record 

adequately establishes a plaintiff's entitlement to benefits.’” Kalmbach v. Comm’r of Soc. 

Sec., 409 Fed. App'x 852, 865 (6th Cir. 2011) (quoting, in part, Faucher v. Sec’y of 

Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994)). “A judicial award of benefits 
20

is proper only where the proof of disability is overwhelming or where the proof of 

disability is strong and evidence to the contrary is lacking.” Faucher, 17 F.3d at 176. 

In the present case, the evidence of record establishes that a remand for award of 

benefits is warranted because the record contains overwhelming evidence, or strong 

evidence while contrary evidence is lacking, that Plaintiff met the criteria of Listing 1.03 

for the time period between June 18, 2012 and April 20, 2016. 

IT IS THEREFORE RECOMMENDED THAT: 

1. The Commissioner’s non-disability finding be REVERSED; 

2. This matter be REMANDED to the Social Security 

Administration under sentence four of 42 U.S.C. § 405(g) for 

payment of benefits consistent with this Report and 

Recommendations, and any decision adopting this Report and 

Recommendations; and 

3. The case be terminated on the Court’s docket. 

August 9, 2019 s/Sharon L. Ovington 

 Sharon L. Ovington 

 United States Magistrate Judge 

 
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NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to the proposed findings and recommendations within FOURTEEN days after 

being served with this Report and Recommendations. Such objections shall specify the 

portions of the Report objected to and shall be accompanied by a memorandum of law in 

support of the objections. If the Report and Recommendation is based in whole or in part 

upon matters occurring of record at an oral hearing, the objecting party shall promptly 

arrange for the transcription of the record, or such portions of it as all parties may agree 

upon or the Magistrate Judge deems sufficient, unless the assigned District Judge 

otherwise directs. A party may respond to another party’s objections within 

FOURTEEN days after being served with a copy thereof. 

Failure to make objections in accordance with this procedure may forfeit rights on 

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 

949-50 (6th Cir. 1981).