The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
FELIPPA PAUL HOLBERT, :
: Case No. 2:19-cv-5553
Plaintiff, :
: JUDGE ALGENON L. MARBLEY
v. :
: Magistrate Judge Deavers
COMMISSIONER OF SOCIAL SECURITY, :
:
:
Defendant. :
OPINION & ORDER
I. INTRODUCTION
This matter is before the Court on Plaintiff Felippa Paul Hobart’s Objections (ECF No. 13)
to the Magistrate Judge’s Report and Recommendation (“R&R”) (ECF No. 12), which
recommended that the Court overrule Plaintiff’s Statement of Specific Errors (ECF No. 8) and
affirm the Commissioner of Social Security’s (“Commissioner”) decision. Upon independent
review by the Court, and for the reasons set forth below, Plaintiff’s Objections are hereby
OVERRULED and this Court ADOPTS the Magistrate Judge’s Report and Recommendation.
II. BACKGROUND
The relevant facts concerning Plaintiff’s medical records, as well as the Administrative
Law Judge’s (“ALJ”) opinion, are set forth in the Magistrate Judge’s R&R. (ECF No. 12).
Accordingly, this Court highlights only those facts that are relevant to this decision.
Plaintiff filed his application for benefits on May 2, 2016, alleging that he has been disabled
since January 1, 2016. (ECF No. 7 at 215-222). Plaintiff avers that he suffers from knee and ankle
pain causing difficulty walking, learning disabilities, sleep apnea, and high blood pressure. (Id. at
238, 235). Plaintiff’s application was denied initially and upon reconsideration. (Id. at 144–46,
155–59). Upon Plaintiff’s request, ALJ Ronald Herman held a hearing on October 10, 2018 where
Plaintiff appeared and testified, as did a vocational expert, Michael Eric Roscoe. (Id. at 34–35).
On February 6, 2019, ALJ Herman issued a decision finding that Plaintiff was not disabled. (Id. at
12–33). On October 21, 2019, the Appeals Council denied Plaintiff’s request for review and
adopted the ALJ’s decision as final. (Id. at 1–6).
In the opinion denying benefits, the ALJ conducted the required five-step sequential
analysis for a disabilities benefits claim. See 20 C.F.R. § 416.920(a)(4); (ECF No. 7 at 15-32). At
step one, the ALJ found that Plaintiff did not engage in substantial gainful activity since June 6,
2015, before Plaintiff’s application date. (Id. at 18). At step two, the ALJ determined that Plaintiff
suffered from the following severe impairments: major joint dysfunction, back disorder, obesity
and depressive disorder. (Id.). At step three, the ALJ found these impairments, taken on their own
or in combination with each other, did not meet or medically equal the requirements of any section
of the listed impairments set forth in 20 CFR Part 404, Subpt. P, App. 1. (Id.). In particular, the
ALJ specifically found that Plaintiff’s major joint dysfunction did not support the required medical
findings of listing 1.02A. (Id.). At step four, the ALJ found that Plaintiff had the following residual
functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that the claimant has
the residual functional capacity to perform light work where he is able to lift up to 20
pounds occasionally and 10 pounds frequently as defined in 20 CFR 416.967(b) excep
sit/stand option alternating every 15 to 30 minutes; occasionally using his right foot for
foot controls; postural activities, such as bending, stooping, crouching, crawling and the
like should be performed on an occasional basis; avoid climbing ladders, ropes and
scaffolds; he needs a cane for walking purposes; and work should be limited to simple,
routine, and repetitive tasks.
(Id. at 21). During the assessment of Plaintiff’s residual functional capacity, the ALJ found the
opinion evidence offered by the Plaintiff to be not fully credible. The ALJ assigned “some weight”
to the opinions of State agency medical consultant Dr. Lehv. (Id. at 24). He further assigned “some
weight” to the opinion of mental consulting psychologist Floyd Sour, M.A., as to Plaintiff’s
limitations in ability to work with others in a work setting, and to the opinions of state agency
psychological consultants Drs. Banks and Delcour as to Plaintiff’s limitations in maintaining social
functioning and concentration, but “no weight” to the balance of those experts’ opinions. (Id. at
24–25). The ALJ also assigned “some weight” to the opinion of post-hearing consultative
examiner Dr. Brown as to Plaintiff’s residual functional capacity, but the ALJ disagreed with Dr.
Brown’s assessment about Plaintiff’s “ability to sit for 20 minutes and then stand and his need for
a cane for walking.” (Id. at 25–26). Based on the vocational expert’s testimony and Plaintiff’s
residual functional capacity, the ALJ found that Plaintiff is able to perform jobs that exist in
significant numbers in the national economy, and so is not disabled under the Social Security Act.
(Id. at 28).
III. STANDARD OF REVIEW
District courts, upon objection to an R&R, is required to “make a de novo determination of
those portions of the report or specified proposed findings or recommendations to which objection
is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Courts may accept, reject, or
modify any of the magistrate judge’s findings or recommendations. See Id. In doing so, a 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.” Ealy v. Comm’r of Soc.
Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241
(6th Cir. 2007)).
Substantial evidence means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Ellis v.
Schweicker, 739 F.2d 245, 248 (6th Cir. 1984). In determining whether substantial evidence exists
to support the Commissioner’s conclusion, the Court must consider the record as a whole. Garner
v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984). The Commissioner’s findings are not to be reversed
simply because there exists substantial record evidence to support an alternative conclusion.
Buxton v. Halter, Comm’r of Soc. Sec., 246 F.3d 762 (6th Cir. 2001). If the Commissioner’s
decision is supported by substantial evidence, it must be affirmed. Elkins v. Sec’y of Health and
Human Servs., 658 F.2d 437, 439 (6th Cir. 1981).
In evaluating a prior decision under the substantial evidence standard, courts consider
“whatever in the record fairly detracts from [the] weight” of the Commissioner’s decision. TNS,
Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340
U.S. 474, 487 (1951)). Even if an ALJ’s decision meets the substantial evidence standard, courts
must overturn a decision of the Commissioner where the Social Security Administration “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 v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir.
2009) (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
IV. LAW & ANALYSIS
Plaintiff raises one objection to the Magistrate’s R&R, which is that the ALJ erred in his
evaluation of whether Plaintiff’s impairments met or equaled the Listing of Impairments necessary
to be met for a finding of disability. (ECF No. 13 at 2). He urges the Court to reverse the
Commissioner’s decision and award benefits or, in the alternative, to remand the matter to the
Commissioner for further proceedings on the evidence. (Id. at 5).
Specifically, Plaintiff objects to the Magistrate Judge’s recommendation to uphold the
ALJ’s finding that Plaintiff’s physical impairments do not meet or equal § 1.02A of the Listing of
Impairments, which sets forth the criteria an applicant must meet for an award of benefits for
musculoskeletal disorders. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 1.02-1.02A; (ECF No. 13
at 2). An applicant can satisfy § 1.02A by proving the existence of four elements: (1) a “gross
anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability);” (2)
“chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of
the affected joint(s);” (3) “findings on appropriate medically acceptable imaging of joint space
narrowing, bony destruction, or ankylosis of the affected joint(s);” and (4) “[i]nvolvement of one
major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate
effectively.” See 20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 1.02-1.02A.
Inability to ambulate effectively is defined 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.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 1.00B(2)(b)(1). It
is also defined “as having insufficient lower extremity functioning, see 1.00J, to permit
independent ambulation without the use of a hand-held assistive device(s) that limits the
functioning of both upper extremities.” Id. Examples of ineffective ambulation provided by the
regulations “include, but are not limited to, the inability to walk without the use of a walker, two
crutches or two canes,” and “the inability to walk a block at a reasonable pace on rough or uneven
surfaces.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 1.00B(2)(b)(2). Plaintiff argues that the ALJ’s
finding that he is able to ambulate effectively and so does not meet the requirements of § 1.02A is
in error, which leaves “the decision unreviewable” and urges that this Court reverse. (ECF No. 13
at 4–5).
The ALJ found that Plaintiff does not suffer from an “inability to ambulate effectively.” In
so finding, the ALJ determined Plaintiff’s evidence fell short of the Listing § 1.02A requirements.
Namely, evidence from multiple doctors demonstrated Plaintiff’s ability to ambulate without the
use of two canes or a walker, as did Plaintiff’s own testimony that he had worked “under the table”
in 2016–2017. (ECF 12 at 21-22). Plaintiff’s treatment records at various times show that he has
an “intact” gait, an “antalgic” gait, and that he is “able to walk without the cane when asked to do
so.” (Id. at 396, 533, 699). In addition, his testimony of working in 2016 and 2017 indicated to the
ALJ that he “had sufficient mobility to perform his daily activities, and to get to and from work,”
which are two indicators of effective ambulation. (ECF No. 11 at 6–7). Finally, the ALJ found that
Plaintiff’s use of a single cane does not satisfy the example of ineffective ambulation in § 1.02A
where a claimant is unable to “walk without the use of a walker, two crutches or two canes.” 20
C.F.R. § Pt. 404, Subpt. P, App. 1 § 1.00B(2)(b)(2).
Plaintiff’s objection focuses on the fact that one of his doctors did find that he could not
walk a block at a reasonable pace while undergoing rough or uneven surfaces, which argues is
“clear evidence documenting” meeting the ineffective ambulation requirement in § 1.02A. (ECF
No. 13 at 4). It is true that the record contains some evidence that could lead to a finding other than
that at which the ALJ arrived. But this Court now need only be satisfied that substantial evidence
supports the ALJ’s finding. Buxton, 246 F.3d at 772; Elkins, 658 F.2d at 439. Because such
substantial evidence exists, including that Plaintiff was able to work in 2016 and 2017, requiring
him to engage in the kind of independent activities that characterize effective ambulation in the
regulations, the ALJ’s finding that Plaintiff failed to meet the requirements of § 1.02A was not in
error. As such, the Court OVERRULES Plaintiff’s objection as to this finding.
V. CONCLUSION
For the aforementioned reasons, the Court hereby OVERRULES Plaintiff's Objection and
ADOPTS the Magistrate Judge’s Report and Recommendation. The case is hereby
DISMISSED. (ECF No. 12).
IT IS SO ORDERED.
ALGENON VL. MARBL
CHIEF UNITED STATES DISTRICT JUDGE
DATED: March 15, 2021