Harris v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

WENDY M. HARRIS, )

CASE NO. 3:20-CV-1956

)

Plaintiff, )

vs.

)

) MAGISTRATE JUDGE

JONATHAN D. GREENBERG

)

COMMISSIONER OF SOCIAL )

SECURITY, )

) MEMORANDUM OF OPINION AND

Defendant. ORDER

Plaintiff, Wendy Harris (“Plaintiff” or “Harris”), challenges the final decision of Defendant, Kilolo

Kijakazi,1 Commissioner of Social Security (“Commissioner”), denying her applications for Period of

Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”)

under Titles II and XVI 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) and the consent of the parties, pursuant to 28 U.S.C.

§ 636(c)(2). For the reasons set forth below, the Commissioner’s final decision is VACATED AND

REMANDED for further proceedings consistent with this opinion.

I. PROCEDURAL HISTORY

In July 2018, Harris filed applications for POD, DIB, and SSI, alleging a disability onset date of

May 5, 2017 and claiming she was disabled due to: degenerative disc disease, depression, PTSD,

hypertension, hypothyroidism, Vitamin D deficiency, low back pain, and urinary incontinence. Transcript

(“Tr.”) at 207, 203, 239. The applications were denied initially and upon reconsideration, and Harris

requested a hearing before an administrative law judge (“ALJ”). Tr. 135.

1 On July 9, 2021, Kilolo Kijakazi became the Acting Commissioner of Social Security.

On September 30, 2019 an ALJ held a hearing, during which Harris, represented by counsel, and

an impartial vocational expert (“VE”) testified. Tr. 35-65. On October 29, 2019, the ALJ issued a written

decision finding that Harris was not disabled. Tr. 15-29. The ALJ’s decision became final on July 22,

2020, when the Appeals Council declined further review. Tr. 1-3.

On September 1, 2020, Harris filed her Complaint to challenge the Commissioner’s final decision.

Doc. No. 1. The parties have completed briefing in this case. Doc. Nos. 17, 19, 20. Harris asserts the

following assignment of error:

The ALJ failed to adequately evaluate claimant’s spinal impairments at Steps 2 and 3 of the

sequential evaluation.

Doc. No. 17, p. 2.

II. EVIDENCE

A. Personal and Vocational Evidence

Harris was born in 1972 and was 44 years old on her alleged disability onset date, making her a

“younger” person under social security regulations. Tr. 28. See 20 C.F.R. §§ 404.1563(c) & 416.963(c).

She has at least a high school education and is able to communicate in English. Tr. 28. She has past work

as a licensed practical nurse. Tr. 28.

B. Relevant Medical Evidence2

On April 21, 2017, Harris went to the emergency room following an automobile accident and

complained of injuries to her head, low back, and chest. Tr. 325-328. Upon exam she had mild low

back pain, a steady gait, and normal strength, range of motion, balance, and coordination. Tr. 326-327.

On June 26, 2017, Harris visited Mercy Health to establish care for her physical and psychiatric

complaints, including hypertension, hypothyroidism, anxiety, and drug and alcohol abuse. Tr. 504-505.

2 The Court’s recitation of the medical evidence is not intended to be exhaustive and is limited to the evidence cited

in the parties’ Briefs.

She denied experiencing numbness, weakness, or musculoskeletal symptoms. Tr. 504.

On August 2, 2017, Harris visited her doctor for hematuria and low back pain. Tr. 501. Upon

exam, she had low back tenderness and negative straight leg raise testing. Tr. 502. She was prescribed

ibuprofen and counseled on the importance of exercise. Tr. 502.

On September 19, 2017, Harris went to the emergency room complaining of right upper quadrant

abdominal pain radiating to her back for the last three days. Tr. 465. She denied a gait disturbance,

weakness, and numbness. Tr. 479. Upon exam, she had abdominal tenderness, a normal range of

motion in her spine, intact strength, normal reflexes and sensation, and a normal gait. Tr. 466, 471, 477,

479. She had an abdominal and pelvic ultrasound and CT scan, which showed gallbladder abnormalities

and grade I anterolisthesis at L5-S1 secondary to bilateral L5 pars interarticularis defects and associated

posterior element hypertrophy, degenerative disc disease at L5-S1 with vacuum disc phenomenon,

degenerative spurring and discogenic sclerosis. Tr. 528.

On June 1, 2018, Harris saw Muhammad Shah, M.D., reporting lower bilateral back pain

radiating to her bilateral hips that had been ongoing for several months. Tr. 453-455. She had no focal

neurological deficits or weakness. Tr. 455. Her review of symptoms was positive for back pain and

negative for arthralgias, gait problems, and joint swelling. Tr. 455. Upon exam, she had tenderness in

her bilateral lower lumbar region, normal range of motion, and negative straight leg raise testing. Tr.

455. She was diagnosed with degenerative disc disease at L5-S1 and obesity and referred to physical

therapy. Tr. 455-456.

On October 15, 2018, Harris saw her primary care physician Sufyan Malik, M.D., to follow up

for her hypertension, incontinence, and bilateral lower extremity edema. Tr. 697-698. Dr. Malik noted

that Harris had been to urology and was diagnosed with mixed overactive bladder and urge incontinence

and had been advised to continue her medication. Tr. 698. She denied back pain. Tr. 698. On October

17, Harris called Dr. Malik’s office to complain of the diagnosis that Dr. Malik had indicted on her

disability paperwork, stating that she has degenerative disc disease. Tr. 697. She wanted her paperwork

filled out again “and put that right now she can not work.” Tr. 697. Dr. Malik replied that he would not

change her form and wrote, “[d]egenerative disc disease does not prevent her from doing a desk job.”

Tr. 697.

On December 3, 2018, Harris went to the emergency room for chest pain; she had a normal

range of motion in a musculoskeletal exam, no tenderness, and normal reflexes, muscle tone, and

coordination. Tr. 638, 641. She denied back pain or gait problems. Tr. 639. At follow up

appointments with her doctor she denied back pain and gait problems and had a normal range of motion.

Tr. 678, 683.

On January 14, 2019, Harris had x-rays of her lumbar spine that showed mildly straightened

lumbar lordosis, grade I spondylolisthesis of L5 on S1 resulting in narrowing of the neural foramen at

that level, and multi-level degenerative disc disease and facet arthropathy. Tr. 964. In February, Harris

began physical therapy for her chronic low back pain with sciatica, left foot pain, and Achilles

tendonitis. Tr. 963. She was discharged in April after 14 visits, reporting that her pain symptoms seem

to have been relieved but that she still felt “a ‘heaviness’ and was limited with mobility for community

distances.” Tr. 1023. She would do her home exercises and was to see a neurologist soon to follow up

on her remaining symptoms. Tr. 1023.

On February 19, 2019, Harris saw Dr. Ahmad for a follow up of her medical problems, including

radiating back pain, numbness and tingling. Tr. 947. She denied gait problems. Tr. 952. Upon exam,

she had a decreased range of motion in her back and tenderness, deformity, pain and spasm. Tr. 953.

She had normal strength and a sensory deficit. Tr. 953. Dr. Ahmad prescribed gabapentin. Tr. 953.

On March 3, 2019, Harris went to the emergency room for chest pain, nausea and vomiting;

upon exam of her extremities she had a full range of motion and a neurological exam showed intact

motor function and sensation. Tr. 826. She denied focal weakness, loss of sensation, and gait

disturbance. Tr. 864, 880, 881, 888.

On May 7, 2019, Harris saw Dr. Carmela Gonzales, M.D., at Mercy Health Multiple Sclerosis

Center for an evaluation for lower extremity numbness and tingling for the last 10 years. Tr. 1139. Her

symptoms were intermittent, stem from her low back, and radiate to both legs, left more than right. Tr.

1139. She had associated muscle spasms and weakness. Tr. 1139. She could not walk more than 25-30

feet or her legs will give out. Tr. 1139. She also reported urinary incontinence for the last 3 years; she

had been diagnosed with mixed incontinence but no longer took her medication because it caused dry

mouth. Tr. 1139-1140. The last six months she had also noticed intermittent tingling of her right arm

and leg when she first stands up. Tr. 1140. Upon exam, she had an adequate range of motion in her

back, normal muscle bulk and tone, full strength in all extremities, decreased sensation to light touch

and pinprick on her left upper and left lower extremities, intact fine motor movement and no involuntary

movements, and her gait had a normal base and arm swing. Tr. 1145. Dr. Gonzales ordered MRIs of

Harris’ brain and cervical and thoracic spine to evaluate for possible demyelinating disease. Tr. 1146.

On May 22, 2019, Harris had a thoracic and cervical spine MRI due to her complaints of

headaches, right arm and leg weakness, unsteady gait and difficulty walking for the past 1.5 years. Tr.

1-93. The result of the thoracic MRI was minor degenerative disc disease, including multilevel facet

hypertrophic changes, mild or minimal disc bulges at every level except at level T5, and, at T12-L1, a

broad-based central and right paracentral protrusion with ventral distal cord flattening. Tr. 1094. The

result of the cervical spine MRI was multilevel degenerative disc disease, including minimal to mild disc

bulging at all levels, and, at levels C5-6 and C6-7, endplate and facet hypertrophic changes, no canal

narrowing or significant canal narrowing, and mild minimal ventral cord flattening. Tr. 1094.

On June 19, 2019, Harris saw Dr. Rayeesa Ahmad, M.D., for a follow up of her hypertension,

obesity, and low back pain. Tr. 1075. Harris reported that she had done physical therapy but it had not

helped and she wanted an MRI. Tr. 1075. She had seen a neurologist to be evaluated for multiple

sclerosis but her brain and thoracic MRI were normal. Tr. 1075. She endorsed arthralgia, back pain,

gait problem, joint swelling and myalgia. Tr. 1081. Upon exam of her lumbar spine, she had a

decreased range of motion, tenderness, bony tenderness, deformity, pain and spasm. Tr. 1082. Dr.

Ahmad diagnosed spinal stenosis and ordered a lumbar MRI. Tr. 1083. Dr. Ahmad provided a

prescription for a walker to be used daily for walking. Tr. 1083, 1179.

On June 28, 2019, Harris had a lumbar spine MRI that showed severe bilateral foraminal

narrowing at L5-S1 secondary to grade II bilateral spondylolysis, multilevel degenerative changes, and

low-lying cord/conus possibly secondary to height loss related to spondylolisthesis. Tr. 1091.

Specifically, from L1-L5, circumferential disc bulges with facet ligamentum flavum hypertrophy were

present; at L3-L4 there was effacement of the bilateral descending L4 nerve roots in the lateral recess,

mild spinal canal narrowing, and moderate bilateral neural foraminal narrowing; at L5-S1 there was

moderate to severe canal narrowing secondary to bilateral spondylolysis with spondylolisthesis,

effacement of the cauda equina, and severe bilateral neural foraminal narrowing. Tr. 1090-1091.

On July 2, 2019, Harris followed up with Dr. Gonzales at Mercy Health Multiple Sclerosis

Center. Tr. 1116. Harris reported that her symptoms were persistent. Tr. 1116. She had been using a

wheeled walker recently and was able to walk about a half a mile before she had to stop and sit down.

Tr. 1116. The tingling in her legs was intermittent and lasted about 30-60 seconds with no clear trigger

and she also had baseline urinary incontinence. Tr. 1116. Upon exam, her back range of motion was

adequate, she had normal muscle bulk and tone, full strength, decreased sensation to light touch and

pinprick on her left upper and left lower extremity, intact reflexes, and her gait had a normal base and

arm swing. Tr. 1123. Dr. Gonzales stated that the MRI results did not show evidence of demyelinating

disease and noted that Harris had been referred to neurosurgery and that no further neurological workup

was recommended. Tr. 1123. She counseled Harris on the importance of regular exercise. Tr. 1123.

On July 30, 2019, Harris saw Dr. Zubair Ahammad, D.O, at Mercy Toledo Neurosurgery for a

consultation for her leg weakness and axial heaviness in her lumbar spine. Tr. 1183. Harris reported

that her legs had given out on her at times and that she had been using a walker the last year or so. Tr.

1183. She also complained of intermittent, radiating numbness and pain down both legs in the posterior

aspect that comes and goes and worsened with forward flexion. Tr. 1183. She endorsed daily episodes

of urinary incontinence for the past 3 years when she is seated without any straining and has loss of

urine. Tr. 1183. She denied saddle anesthesia but endorsed worsening constipation over the last six

months. Tr. 1183. Upon exam, she had intact sensation, full muscle strength, and normal reflexes. Tr.

1188. Dr. Ahammad assessed Harris with spondylolisthesis L5-S1 level and lumbar stenosis with

neurogenic claudication. Tr. 1188. Dr. Ahammad wrote that Harris had “clear symptoms of

claudication. Despite the incontinence it has been stable and going on for 3 years at this point.” Tr.

1188. He recommended smoking cessation and bariatric surgery for weight loss, which she was

“already in the pipeline for.” Tr. 1188. She was to return in December 2019 for lumbar flexion and

extension x-rays to reevaluate for surgery once she had stopped smoking and lost weight. Tr. 1188.

Meanwhile, if she had worsening symptoms, including bowel/bladder incontinence or saddle symptoms,

she was to return sooner. Tr. 1188.

C. State Agency Reports

On September 28, 2018, state agency reviewing physician Sreenivas Venkatachala, M.D.,

evaluated Harris’ physical impairments. Tr. 75-76. Dr. Venkatachala did not consider whether Harris

satisfied the criteria of any physical listings. Tr. 74. Regarding Harris’ RFC, Dr. Venkatachala opined

that Harris could perform light work with restrictions on her ability to perform postural activities. Tr.

74-76. On January 8, 2019, Rannie Amiri, M.D., considered whether Harris satisfied the criteria of

Listing 1.04, but concluded that she did not. Tr. 98. Dr. Amiri affirmed Dr. Venkatachala’s opinion

regarding Harris’ RFC, explaining that Harris had a normal gait, negative straight leg raise testing, and

decreased range of motion in her lumbar spine. Tr. 100. Dr. Amiri added a restriction that Harris

should avoid workplace hazards. Tr. 98-101.

D. Hearing Testimony

During the September 30, 2019 hearing, Harris testified to the following:

• She lives with her girlfriend, her son, and her son’s girlfriend. Tr. 40. She has a driver’s

license and drives on a regular basis. Tr. 41.

• She last worked in 2017 as a licensed practical nurse. Tr. 41. She worked as a nurse for 14

years. Tr. 45. She stopped working because of her drug addiction; she took time off and

became sober but then her back problems gradually got worse. Tr. 45.

• She started having back problems in 2003 and started getting treatment for it in May 2017.

Tr. 45-46. She had physical therapy in 2019 for 3 months. Tr. 47. Otherwise, she had a gap

in treatment between 2017 and 2019 because “it was the doctor’s decision to make.” Tr. 47.

She regularly reported to her doctor that she had pain and they put her on gabapentin, which

is a narcotic, and which was not beneficial. Tr. 47. She did not get a second opinion. Tr.

47. Her pain level was between a 5 and 8. Tr. 47.

• In 2019 she became unable to walk a long distance without a walker. Tr. 48. She can walk

30-50 feet without it. Tr. 48. Her walker was prescribed by her family physician, Dr.

Ahmed, in June 2019. Tr. 48.

• She developed urinary incontinence in June 2017 that has been getting worse. Tr. 50. She

saw a urologist who put her on medication, but the medication caused side effects and it did

not resolve her incontinence so she stopped taking it. Tr. 50-51. She is not seeing any

provider for that problem because she doesn’t know what they can do for it, other than back

surgery. Tr. 51. She believes it is caused by her back problem. Tr. 51. When asked if a

provider has told her that, she answered no, but explained, “from the results, that it’s cutting

off the nerves. To the lower half of my body.” Tr. 54. Sometimes she urinates without any

notification that she has to urinate. Tr. 51.

• She is pursuing bariatric weight loss surgery and has an upcoming appointment to complete

the dietician aspect of that surgery and she has already stopped smoking, another

prerequisite for her surgery. Tr. 53. She has an appointment in December with her

neurosurgeon; if she has healed from her bariatric surgery she will be evaluated for back

surgery. Tr. 54.

• Her back symptoms include a heaviness in the middle, where her back and legs meet, and

weakness. Tr. 54. She also has pain in both legs. Tr. 54. The last couple of years it has

been getting worse; the pressure is worse when she stands up and the numbness and tingling

are also worse. Tr. 55.

.

The VE testified that Harris has past work as a licensed practical nurse. Tr. 58. The ALJ asked

the VE whether a hypothetical individual with the same age, education and work experience as Harris

could perform her past work or any other work if the individual had the following residual functional

capacity: she could perform a full range of light work except she can frequently climb ramps or stairs

but never ladders, ropes or scaffolds; can frequently crouch, occasionally stoop, and never kneel or

crawl; and can never be exposed to unprotected heights. Tr. 58. The VE testified that the hypothetical

individual would not be able to perform Harris’ past work but could perform other jobs in the economy.

Tr. 58-59. The ALJ asked the VE if there were jobs the hypothetical individual could perform if she

were limited to work in the sedentary range and the VE answered that such an individual could perform

the following jobs: document preparer, addresser or address clerk, and surveillance system monitor. Tr.

60. When asked about normal breaks, absenteeism, and off-task behavior, the VE stated that normal

breaks are two 10-15-minute breaks and a 30-40-minute lunch, and that an individual could not miss

more than one half to one day of work a month or be off-task more than 10-12% of the workday. Tr.

60-61.

Harris’ attorney asked the VE whether the individual’s use of a walker for ambulation would

impact the jobs he identified and the VE stated that such an individual could not perform jobs at the light

level of exertion. Tr. 62. Harris’ attorney confirmed that one of the jobs the VE identified—document

preparer—was defined as relating to microfilming and the VE stated that it was. Tr. 62. When asked

when that job had last been updated in the Dictionary of Occupational Titles, the VE answered that it

had last been updated in 1990. The VE explained that that job was an alternative and that he updates the

skill set, language and terminology to “marry” how the job is described in the DOT and how it is

performed in today’s market. Tr. 62-63.

III. STANDARD FOR DISABILITY

In order to establish entitlement to DIB under the Act, a claimant must be insured at the time of

disability and must prove an inability to engage “in substantial gainful activity by reason of any medically

determinable physical or mental impairment,” or combination of impairments, that can be expected to

“result in death or which has lasted or can be expected to last for a continuous period of not less than 12

months.” 20 C.F.R. §§ 404.130, 404.315 and 404.1505(a). A claimant is entitled to a POD only if: (1) she

had a disability; (2) she was insured when she became disabled; and (3) she filed while she was disabled

or within twelve months of the date the disability ended. 42 U.S.C. § 416(i)(2)(E); 20 C.F.R. § 404.320.

A disabled claimant may also be entitled to receive SSI benefits. 20 C.F.R. § 416.905; Kirk v.

Sec’y of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). To receive SSI benefits, a claimant must

meet certain income and resource limitations. 20 C.F.R. §§ 416.1100, 416.1201.

The Commissioner reaches a determination as to whether a claimant is disabled by way of a five-

stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). See also Ealy v. Comm’r of Soc. Sec., 594

F.3d 504, 512 (6th Cir. 2010); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant

must demonstrate that she is not currently engaged in “substantial gainful activity” at the time of the

disability application. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant must show that

she suffers from a “severe impairment” in order to warrant a finding of disability. 20 C.F.R. §§

404.1520(c) and 416.920(c). A “severe impairment” is one that “significantly limits . . . physical or

mental ability to do basic work activities.” Abbot, 905 F.2d at 923. Third, if the claimant is not

performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve

months, and the impairment, or combination of impairments, meets or medically equals a required listing

under 20 CFR Part 404, Subpart P, Appendix 1, the claimant is presumed to be disabled regardless of age,

education or work experience. See 20 C.F.R. §§ 404.1520(d) and 416.920(d). Fourth, if the claimant’s

impairment or combination of impairments does not prevent her from doing her past relevant work, the

claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and 416.920(e)-(f). For the fifth and final step,

even if the claimant’s impairment does prevent her from doing her past relevant work, if other work exists

in the national economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§

404.1520(g), 404.1560(c), and 416.920(g).

Here, Harris was insured on the earliest possible disability onset date, May 5, 2017, and remained

insured through December 31, 2022, her date last insured (“DLI.”). Tr. 15. Therefore, in order to be

entitled to POD and DIB, Harris must establish a continuous twelve month period of disability

commencing between those dates. Any discontinuity in the twelve month period precludes an entitlement

to benefits. See Mullis v. Bowen, 861 F.2d 991, 994 (6th Cir. 1988); Henry v. Gardner, 381 F.2d 191, 195

(6th Cir. 1967).

IV. SUMMARY OF COMMISSIONER’S DECISION

The ALJ made the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act through

December 31, 2022.

2. The claimant has not engaged in substantial gainful activity since May 5, 2017, the

alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: degenerative disc disease of the

lumbar spine, obesity, and coronary artery disease (20 CFR 404.1520(c) and

416.920(c)).

4. The claimant does not have an impairment or combination of impairments that meets or

medically equals the severity of one of the listed impairments in 20 CFR Part 404,

Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925

and 416.926).

5. After careful consideration of the entire record, I find that the claimant has the residual

functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and

416.967(a) except: she can frequently climb ramps and stairs. She can never climb

ladders, ropes, or scaffolds. She can frequently crouch. She can occasionally stoop. She

can never kneel and crawl. She can never be exposed to unprotected heights.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and

416.965).

7. The claimant was born on October **, 1972 and was 44 years old, which is defined as a

younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and

416.963).

8. The claimant has at least a high school education and is able to communicate in English

(20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because

using the Medical-Vocational Rules as a framework supports a finding that the claimant

is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41

and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant’s age, education, work experience, and residual functional

capacity, there are jobs that exist in significant numbers in the national economy that the

claimant can perform (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).

11. The claimant has not been under a disability, as defined in the Social Security Act, from

May 5, 2017, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. 17-29.

V. STANDARD OF REVIEW

“The Social Security Act authorizes narrow judicial review of the final decision of the Social

Security Administration (SSA).” Reynolds v. Comm’r of Soc. Sec., 2011 WL 1228165 at * 2 (6th Cir.

April 1, 2011). Specifically, this Court’s review is limited to determining whether the Commissioner’s

decision is supported by substantial evidence and was made pursuant to proper legal standards. See Ealy

v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010); White v. Comm’r of Soc. Sec., 572 F.3d 272,

281 (6th Cir. 2009). Substantial evidence has been defined as “‘more than a scintilla of evidence but less

than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip

v. Sec’y of Health and Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). In determining whether an ALJ’s

findings are supported by substantial evidence, the Court does not review the evidence de novo, make

credibility determinations, or weigh the evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d

679, 681 (6th Cir. 1989).

Review of the Commissioner’s decision must be based on the record as a whole. Heston v.

Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The findings of the Commissioner are not

subject to reversal, however, merely because there exists in the record substantial evidence to support a

different conclusion. Buxton v. Halter, 246 F.3d 762, 772-3 (6th Cir.2001) (citing Mullen v. Bowen, 800

F.2d 535, 545 (6th Cir. 1986)); see also Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir.

1999)(“Even if the evidence could also support another conclusion, the decision of the Administrative

Law Judge must stand if the evidence could reasonably support the conclusion reached.”) This is so

because there is a “zone of choice” within which the Commissioner can act, without the fear of court

interference. Mullen, 800 F.2d at 545 (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).

In addition to considering whether the Commissioner’s decision was supported by substantial

evidence, the Court must determine whether proper legal standards were applied. Failure of the

Commissioner to apply the correct legal standards as promulgated by the regulations is grounds for

reversal. See, e.g., White v. Comm’r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009); Bowen v. Comm’r of

Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“Even if supported by substantial evidence, however, 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.”).

Finally, a district court cannot uphold an ALJ’s decision, even if there “is enough evidence in the

record to support the decision, [where] the reasons given by the trier of fact do not build an accurate and

logical bridge between the evidence and the result.” Fleischer v. Astrue, 774 F. Supp. 2d 875, 877 (N.D.

Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996)); accord Shrader v. Astrue, 2012

WL 5383120 (E.D. Mich. Nov. 1, 2012) (“If relevant evidence is not mentioned, the Court cannot

determine if it was discounted or merely overlooked.”); McHugh v. Astrue, 2011 WL 6130824 (S.D. Ohio

Nov. 15, 2011); Gilliam v.Astrue, 2010 WL 2837260 (E.D. Tenn. July 19, 2010); Hook v. Astrue, 2010

WL 2929562 (N.D.Ohio July 9, 2010).

VI. ANALYSIS

Harris argues that the ALJ erred at step three when he found that her spinal impairments did not

rise to a listings level impairment because the ALJ evaluated the wrong listing.3 Doc. No. 17, pp. 13-14.

Instead of evaluating her spinal impairment pursuant to Listing 1.04, disorders of the spine, the ALJ

evaluated her spinal impairment pursuant to Listing 1.02, major dysfunction of a joint. Harris did not

allege she has, nor is there evidence of, a major dysfunction of a joint. Harris asserts that there is “no

correlation between [her] allegations of disability resulting from spinal conditions and the ALJ’s

detailed discussion as to why [she] does not meet a Listing that is directed to dysfunction of major

weight bearing joints.” Doc. No. 17, p. 14.

Defendant concedes that the ALJ evaluated Harris’ spinal impairment according to the wrong

listing but asserts that Harris’ challenge to the ALJ’s decision lacks merit “because she failed to produce

evidence that fulfilled all of the criteria for a disabling listed spinal impairment.” Doc. No. 19, pp. 7-8.

Defendant argues that, to prevail, Harris must establish “a substantial question” as to whether she was

disabled under Listing 1.04, identify “specific evidence that demonstrates that she reasonably could

meet or equal every requirement of the listing,” and submits that Harris does not do so. Doc. No. 19, p.

3 Harris’ argument that the ALJ erred at step two when he found “only one severe impairment as it relates to [her] spinal

column: degenerative disc disease of the lumbar spine” and not her other, spinal-related diagnoses fails because the ALJ

evaluated her spinal diagnoses when assessing her RFC. Doc. No. 17, pp. 11-13; Tr. 23-24. See Maziarz v. Sec’y of Health

& Human Servs., 837 F.2d 240, 244 (6th Cir. 1987) (the failure to find an impairment severe at step two is not reversible

error when the ALJ continues through the remaining steps of the evaluation and can consider all impairments when assessing

an RFC).

8. Defendant states that the ALJ’s “thorough analysis of the evidence related to Plaintiff’s gait and

neurological functioning is sufficient basis for this Court to uphold the ALJ’s step three non-disability

finding.” Doc. No. 19, p. 10.

Listing 1.04 is:

Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis,

osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in

compromise of a nerve root (including the cauda equina) or the spinal cord. With:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain,

limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or

muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the

lower back, positive straight-leg raising test (sitting and supine); or

***

C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate

medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and

resulting in inability to ambulate effectively, as defined in 1.00B2b.

20 C.F.R. Pt. 404, Subpt. P, App. 1.4

Harris asserts that she satisfies the diagnostic definition of Listing 1.04—a disorder or a spine

resulting in compromise of a nerve root or the spinal cord. Doc. No. 17, pp. 15-16; Doc. No. 20, pp. 7-

8. Defendant does not counter that argument. Rather, Defendant argues that Harris does not point to

evidence showing that she can satisfy the additional criteria in Listing 1.04 A or C. Defendant asserts

that, elsewhere in his decision, the ALJ “clearly pointed out that [Harris] failed to produce evidence of

the kind of abnormalities that are required to satisfy this listing, such as motor weakness, muscle

atrophy, sensation loss, reflex abnormalities, and limited range of motion.” Doc. No. 19, pp. 8-9 (citing

Tr. 26). Thus, Defendant argues, “given the overwhelmingly benign clinical evidence regarding

Plaintiff’s strength, sensation, reflexes, range of motion, and straight leg raise testing, Plaintiff cannot

reasonably show that she met or medically equaled all of the criteria of Listing 1.04(A).” Doc. No. 19,

4 Listing 1.04(B) involves spinal arachnoiditis, which does not apply to Harris.

p. 9.

In support of their arguments, both sides cite unpublished opinions favoring their positions.

Harris relies upon Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411 (6th Cir. 2011) and Harvey v.

Comm’r of Soc. Sec., 2017 WL 4216585 (6th Cir. Mar. 6, 2017), two cases in which the ALJ concluded

the claimant’s physical impairments did not satisfy a listing at step three but provided no explanation. In

Reynolds, the Court found that the ALJ’s step three error was not harmless because “it is possible that

the evidence Reynolds put forth could meet this listing.” 424 F. App’x at 416. In Harvey, the Court

reversed the district court’s finding that the ALJ’s decision at step three was harmless. The ALJ had

concluded, without explanation, that the claimant did not satisfy Listing 1.02. The Court identified

evidence in the record that could support the criteria of Listing 1.02 and wrote, “the district court should

not have speculated [by looking elsewhere in the opinion] what the ALJ may have concluded had he

considered the medical evidence under the criteria in Listing 1.02.” 2017 WL 4216585, at *6 (citing

Thomas v. Colvin, 826 F.3d 953, 959 (7th Cir. 2016)). The Court concluded,

Moreover, we will not apply a harmless error review to the ALJ’s omission because the district

court engaged in fact-finding to resolve this issue. Chenery Corp., 332 U.S. at 196. When an ALJ

fails to make a determinative and necessary finding of fact in a sequential step, a reviewing court

should not “fill that gap.” See Getch v. Astrue, 539 F.3d 473, 481 (7th Cir. 2008). Because the

ALJ committed an error of law, we must vacate and remand, “even if the factual determinations

are otherwise supported by substantial evidence and the outcome on remand is unlikely to be

different.” Reynolds, 424 Fed.Appx. at 414 (quoting Kalmbach v. Comm’r of Soc. Sec., 409

Fed.Appx. 852, 859 (6th Cir. 2011)).

Id. at *7.

Defendant relies upon different cases. In Smith-Johnson v. Comm’r of Soc. Sec., 579 Fed. App’x

426, 432 (6th Cir. 2014), the ALJ failed to consider Listing 12.05C, intellectual disability. The Court

stated, “neither the listings nor the Sixth Circuit require the ALJ to address every listing or to discuss

listings that the applicant clearly does not meet.” Id. “The ALJ should discuss the relevant listing,

however, where the record raises a substantial question as to whether the claimant could qualify as

disabled under a listing. Id. (cleaned up, quoting Abbott v. Sullivan, 905 F.2d 918, 925 (6th Cir. 1990),

Sheeks, v. Comm’r of Soc. Sec., 544 Fed. App’x 639, 641 (6th Cir. 2013)). The Court explained,

A claimant must do more than point to evidence on which the ALJ could have based his finding

to raise a “substantial question” as to whether he has satisfied a listing. Sheeks, 544 Fed.Appx. at

641–42 (finding claimant did not raise a substantial question as to satisfying the listing for

intellectual disability where the ALJ’s finding of borderline intellectual functioning simply left

open the question of whether he meets a listing and where claimant pointed to only a few pieces

of tenuous evidence addressing the listing). Rather, the claimant must point to specific evidence

that demonstrates he reasonably could meet or equal every requirement of the listing. See

Sullivan, 493 U.S. at 530, 110 S.Ct. 885 (“For a claimant to show that his impairment matches a

listing, it must meet all of the specified medical criteria. An impairment that manifests only some

of the criteria, no matter how severely, does not qualify.”); Foster v. Halter, 279 F.3d 348, 354–

55 (6th Cir.2001) (claimant must satisfy the diagnostic description and one of the four sets of

criteria); see also Reynolds v. Comm’r of Soc. Sec., 424 Fed.Appx. 411, 416 (6th Cir.2011)

(holding that it was not harmless error for the ALJ to fail to analyze Step Three as to an

impairment found to be severe at Step Two where the claimant put forth evidence that possibly

could meet the relevant listing).[] Absent such evidence, the ALJ does not commit reversible

error by failing to evaluate a listing at Step Three.

Id. at 432-433. Because the ALJ did not discuss Listing 12.05, the Court considered “whether the record

evidence raises a substantial question as to Smith–Johnson’s ability to satisfy each requirement of the

listing.” Id. After weighing the evidence, the Court found that the claimant had not “pointed to any

record evidence that raises a substantial question as to whether she satisfied the diagnostic definition.”

Id. at 433-436. The Court rejected the claimant’s argument that it was performing a post-hoc

rationalization of the ALJ’s step three analysis, reasoning,

Undoubtedly, there is a fine line between a post-hoc rationalization and a determination as to

whether the record evidence raises a substantial question. Yet, it is proper for the court to

evaluate whether the findings and opinions of the mental-health professional that Smith–Johnson

contends supports a disability determination raises a substantial question. It also is proper to

consider the ALJ’s evaluation of the mental-health assessment of Koopman at other steps of his

decision to determine how to credit the evidence at issue in this appeal.

Id. at 435.

In O’Brien v. Comm’r of Soc. Sec., 819 Fed. App’x 409, 415 (6th Cir. 2020), also cited by

Defendant, the Court considered whether the ALJ erred when he found that the claimant did not satisfy

the criteria in Listing 1.04(A). Affirming, the Court stated, “We agree that because there is no evidence

of nerve-root compression (accompanied by motor loss and positive straight-leg raising tests in both the

sitting and supine position), spinal arachnoiditis, or lumbar spinal stenosis resulting in

pseudoclaudication, the evidence does not support a finding that O’Brien’s impairments meet or are

equivalent to this Listing.” Id. And in Bailey v. Comm’r of Soc. Sec., 413 Fed. App’x 853, 855 (6th Cir.

2011), the Court rejected the claimant’s argument that she could medically equal Listing 1.04(A) when

she did not have either nerve root or spinal cord compression, observing that she did not demonstrate “a

lack of motor strength, a lack of sensory functions, and a positive straight-leg raising test, among other

things.” But both O’Brien and Bailey involved challenges to the ALJ’s reasoned explanation regarding

why the claimant failed to satisfy Listing 1.04⸺here, the ALJ didn’t evaluate whether Harris satisfied

Listing 1.04 at all.

Defendant also cites Forrest v. Comm’r of Soc. Sec., 591 Fed. App’x 359, 365 (6th Cir. 2014),

and Sheeks v. Comm’r of Soc. Sec., 544 Fed. App’x 639, 641 (6th Cir. 2013). Doc. No. 19, p. 8. But in

those cases, the Court took pains to note that the claimants had never argued before the ALJ that they

satisfied the listing they challenged on appeal. Id. at 641 (“In defense of the ALJ, Sheeks did not

mention the listing in the administrative proceeding. He raised it for the first time at the district court

and has stayed the course in pressing it here.”); Forrest, 591 Fed. App’x at 365. Here, in contrast,

Harris argued to the ALJ that her lumbar spine impairment was “listing level severity.” Tr. 39-40

(Hearing).

Thus, the Court is left with two relevant, unpublished Sixth Circuit opinions: Harvey, which

counsels against a court speculating upon how an ALJ would decide a listing issue that was not

evaluated, and Smith-Johnson, which permits a court to consider whether the record evidence raises a

substantial question as to the claimant’s ability to satisfy each requirement of a listing not evaluated by

an ALJ. The Court finds that the facts of this case are more in line with the facts in Harvey, and,

therefore, concludes that remand is warranted.

First, the court in Smith-Johnson relied on the fact that there was insufficient evidence that the

claimant satisfied the diagnostic definition of Listing 12.05, intellectual disability or borderline

intellectual functioning. 579 Fed. App’x at 433-435. Here, Harris asserts, and Defendant does not

dispute, that she satisfies the diagnostic definition of Listing 1.04, “disorders of the spine (e.g., herniated

nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet

arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the

spinal cord.”

Next, the ALJ in Smith-Johnson, when assessing the claimant’s RFC, had discussed and relied

upon two pieces of opinion evidence (including one by an examining physician) concluding that the

claimant did not have an intellectual disability, and the Court analyzed those opinions and agreed with

the ALJ that both supported the view that the claimant did not have an intellectual disability. Id. at 434-

435. Here, the ALJ cited the state agency reviewing opinions but did not discuss them, other than

commenting that they had limited Harris to light work. Tr. 27. Neither provided an explanation for

whether Harris satisfied Listing 1.04.5 The ALJ also commented that Dr. Lalor, a physician who

evaluated Harris for bariatric surgery, “indicated that the claimant had no functional impairments and

suggested the claimant’s back pain was not disabling.” Tr. 27. That statement is not supported by the

treatment note the ALJ had previously cited for that visit, Exhibit 21F/2 (Tr. 24, 26). There is no

opinion, indication, or obvious suggestion contained in that treatment note and the ALJ did not explain

how that treatment note supports a finding that Harris does not meet or equal Listing 1.04.

Finally, additional errors are contained in the ALJ’s decision. As Harris points out (Doc. No. 17,

5 Dr. Venkatachala did not consider Listing 1.04. Dr. Amiri did but provided no reasons for concluding that Harris did not

satisfy it. When evaluating Harris’ symptoms, Dr. Amiri stated that she did not have an assistive device, but Dr. Amiri’s

review occurred prior to Harris receiving a prescription for an assistive device. Tr. 98-99.

p. 15), the ALJ stated, “[t]here is no evidence to support the claimant’s testimony that her need for a

walker or a wheelchair has been prescribed by Dr. Ahmad” (Tr. 22) and that there was “no record of the

use of an assistive device” (Tr. 24). But Dr. Ahmad did prescribe a walker (Tr. 1083, 1179). Next, the

ALJ described Harris’ neurosurgeon, Dr. Ahammad, as having recommended conservative treatment

(Tr. 24), but Dr. Ahammad had recommended that Harris return in six months for lumbar flexion and

extension x-rays to reevaluate for surgery once she had stopped smoking and lost weight after her

bariatric surgery. Tr. 1188. Since then, Harris had stopped smoking and was nearing her bariatric

surgery date to achieve weight loss. Tr. 53. The ALJ ignored the fact that Dr. Ahammad considered

surgery a potential option for Harris’ “significant” lumbar stenosis and “clear symptoms of

claudication.” Tr. 1188. Lastly, Dr. Ahammad referenced Harris’ incontinence, indicating it was caused

by her lumbar spine impairment. Tr. 1188. That may be evidence of motor loss, a finding relevant to

Listing 1.04A.

In sum, Harris has shown that she meets the diagnostic criteria of Listing 1.04, disorders of the

spine. In addition, there is some evidence in the record of neuro-anatomic distribution of pain (back and

leg pain), limitation of motion of the spine, and possible motor loss (incontinence) accompanied by

sensory loss. Thus, she has shown more than a “mere toehold in the record on an essential element of”

Listing 1.04. Sheeks, 544 Fed. App’x at 642. Although there is involvement of the lower back and

Harris did not have positive straight leg raise testing, the ALJ must evaluate whether Harris meets and

medically equals Listing 1.04A. Harvey, 2017 WL 4216585, at *7 (“When an ALJ fails to make a

determinative and necessary finding of fact in a sequential step, a reviewing court should not ‘fill that

gap.’”). And while the ALJ considered Harris’ ability to ambulate effectively as defined in 1.00B2b (an

element of 1.04C) when he erroneously evaluated Harris’ spinal impairment under Listing 1.02, on

remand, the ALJ will have an opportunity to reconsider that issue and Harris’ prescription for a walker.

VII. CONCLUSION

For the foregoing reasons, the Commissioner’s final decision is VACATED AND

REMANDED for further proceedings consistent with this opinion.

IT IS SO ORDERED.

Date: October 27, 2021 s/ Jonathan Greenberg

Jonathan D. Greenberg

United States Magistrate Judge