511 F.Supp.3d 791
E.D. Ky.2021Background
- Plaintiff Tammie Richardson (born 1965) applied for DIB with an alleged onset of July 23, 2016; ALJ denied benefits and Appeals Council denied review; district court review followed.
- ALJ found severe impairments: degenerative disc disease with T8-9 bulge, left knee tendinosis, and non‑insulin dependent diabetes; found she could perform medium, unskilled work with some postural limits (RFC).
- At Step 2 the ALJ found "no more than mild" mental limitations under the paragraph B criteria but did not include any mental limitations in the RFC.
- Examining psychologist Dr. Ollie C. Dennis opined mild‑to‑moderate limits in social interaction and adaptation and the ALJ gave his opinion great weight, yet the RFC did not reflect those non‑exertional limits.
- Orthopedic surgeon Dr. Frank A. Burke examined Richardson and opined limitations consistent with light work (e.g., reduced lifting, postural limits); the ALJ’s decision failed to meaningfully discuss or weigh Burke’s opinion.
- The ALJ treated occasional, unprescribed cane use as unsupported by the record and did not include cane‑related restrictions; the district court remanded for further consideration of the mental‑health findings and Dr. Burke’s opinion, but upheld the ALJ’s treatment of cane evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ALJ must account for Step 2 (paragraph B) mental findings in the RFC | Richardson: ALJ erred by omitting mental limits from RFC despite Step 2 findings and giving great weight to Dr. Dennis | ALJ argued RFC incorporated the paragraph B findings and relied on DDS reviewers and other record evidence showing mild limits | Remand — ALJ failed to explain why paragraph B findings and Dennis’s mild‑to‑moderate limits were omitted from RFC; meaningful review impossible |
| Whether ALJ erred by not including cane‑related limitations in RFC | Richardson: regular cane use would preclude medium work and should be reflected in RFC | ALJ: record shows no prescription, mostly normal gait notes, cane use was occasional and ambulation generally normal | No reversible error — substantial evidence supports ALJ’s treatment of sporadic/unprescribed cane use |
| Whether ALJ failed to consider or explain weight given to Dr. Frank Burke (examining orthopedist) | Richardson: ALJ ignored Burke’s exam and opinion that supported only light work, contradicting RFC | ALJ cited the exhibit containing Burke’s report but did not discuss Burke’s specific opinion; argued he considered the entire record | Remand — ALJ’s silence on Burke’s contradictory, examining opinion is reversible; must evaluate and explain treatment of Burke’s opinion |
| Whether ALJ properly weighed non‑physician and examining psychologist opinions (APRN Spalding, Dr. Dennis) | Richardson: APRN should have treating‑source weight or at least been better credited; ALJ misapplied Dennis’s findings (gave great weight but omitted limits) | ALJ: APRN was not an "acceptable medical source" for treating‑physician deference (claim filed pre‑3/27/17); ALJ permissibly gave Spalding little weight and properly explained weighting of other opinions | Mixed: ALJ permissibly discounted APRN; but remand required because ALJ did not reconcile giving great weight to Dennis yet excluding his mental limits from the RFC |
Key Cases Cited
- Blakley v. Comm’r of Soc. Sec., 581 F.3d 399 (6th Cir. 2009) (review limited to whether ALJ’s factual findings are supported by substantial evidence)
- Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284 (6th Cir. 1994) (definition of substantial evidence)
- Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004) (remand required when ALJ applies incorrect legal standards)
- Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647 (6th Cir. 2009) (ALJ must follow SSA regulations and avoid prejudicial error)
- Keeton v. Comm’r of Soc. Sec., 583 F. App’x 515 (6th Cir. 2014) (ALJ must explain evaluation of examining physician opinions)
- Kalmbach v. Comm’r of Soc. Sec., 409 F. App’x 852 (6th Cir. 2011) (incorrect legal standards require remand)