Vonlinger v. SSA

Filing 13

MEMORANDUM OPINION & ORDER, Motions terminated: II IS ORDERED as follows: 1. Plaintiff Helen Vonlinger's Motion for Summary Judgment 10 is GRANTED; 2. Defendant Commissioner's Motion for Summary Judgment 12 is DENIED; 3. The action is hereby REMANDED to the Commissioner under Sentence Four of 42 U.S.C. § 405(g) with instructions to adequately address the specific finding ofPlaintiffs RFC; 4. A judgment will entered herewith. Signed by Judge David L. Bunning on 6/13/2017.(KM)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
CIVIL ACTION NO. 16-319-DLB
HELEN VONLINGER

vs.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security
* *

* *

* *

DEFENDANT
* *

* *

* *

* *

* *

Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to
obtain judicial review of an administrative decision of the Commissioner of Social
Security. The Court, having reviewed the record and the parties’ dispositive motions, and
for the reasons set forth herein, hereby reverses and remands the decision of the
Commissioner.
I.

FACTUAL AND PROCEDURAL BACKGROUND
On October 15, 2012, Plaintiff Helen Vonlinger protectively applied for Disability

Insurance Benefits (DIB) payments, alleging disability beginning on February 1, 2013.
(Tr. 12). Plaintiff’s application was denied initially on September 3, 2013, and again on
reconsideration on December 6, 2013. Id. At Plaintiff’s request, an administrative hearing
was conducted on March 17, 2015, before Administrative Law Judge (ALJ) Don C. Paris.
Id. On April 9, 2015, ALJ Paris issued an unfavorable decision, finding that Plaintiff was
not entitled to disability benefits. (Tr. 12-24). The decision became final when the
Appeals Council denied Plaintiff’s request for review on July 19, 2016. (Tr. 1-7). Plaintiff

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filed the instant action on August 24, 2016. (Doc. # 1). The matter has culminated in
cross-motions for summary judgment, which are now ripe for adjudication. (Docs. # 10 &
12).
II.

DISCUSSION
A.

Overview of the Process

Judicial review of the Commissioner’s decision is restricted to determining whether
it is supported by substantial evidence and was made pursuant to proper legal standards.
See Colvin v. Barnhart, 475 F.3d 727, 729 (6th Cir. 2007). “Substantial evidence” is
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.” Cutlip v. Sec’y Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Courts are not to conduct a de novo review, resolve conflicts in the evidence, or make
credibility determinations. Id. Rather, a court is required to affirm the Commissioner’s
decision, as long as it is supported by substantial evidence, even if it might have decided
the case differently. Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
If supported by substantial evidence, the Commissioner’s findings must be affirmed, even
if there is evidence favoring Plaintiff’s side. Listenbee v. Sec’y of Health & Human Servs.,
846 F.2d 345, 349 (6th Cir. 1988). Similarly, an administrative decision is not subject to
reversal merely because substantial evidence would have supported the opposite
conclusion. Smith v. Chater, 99 F.3d 780, 781-82 (6th Cir. 1996).
To determine disability, the ALJ conducts a five-step analysis. “If, at any step
during the process, it is determined that the claimant is or is not disabled, the process is
terminated.” Despins v. Comm’r of Soc. Sec., 257 F. App’x 923, 928-29 (6th Cir. 2007).

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Step One considers whether the claimant can still perform substantial gainful activity;
Step Two, whether any of the claimant’s impairments, alone or in combination, are
“severe”; Step Three, whether the claimant’s impairments meet or equal a listing in the
Listing of Impairments; Step Four, whether the claimant can still perform her past relevant
work; and Step Five, whether a significant number of other jobs exist in the national
economy that the claimant can perform. With the last step, the burden of proof shifts from
the claimant to the Commissioner to identify “jobs in the economy that accommodate
[Plaintiff’s] residual functional capacity.” See Jones v. Comm’r of Soc. Sec., 336 F.3d
469, 474 (6th Cir. 2003); see also Preslar v. Sec’y of Health & Human Servs., 14 F.3d
1107, 1110 (6th Cir. 1994).
B.

The ALJ’s Determination

ALJ Paris began the sequential evaluation by determining at Step One that the
Plaintiff has not engaged in substantial gainful activity since February 1, 2013, the alleged
onset date. (Tr. 14). At Step Two, the ALJ found that the Plaintiff had three “severe”
impairments: (1) degenerative disc disease of the lumbar and cervical spine, (2)
depressive disorder, and (3) anxiety disorder. Id.
At Step Three, the ALJ found that the Plaintiff does not have an impairment, or
combination of impairments, listed in or medically equivalent to an impairment in the
Listings of Impairments. (Tr. 16 (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1)). In doing so,
the ALJ determined that the Plaintiff’s degenerative disc disease did not satisfy the criteria
of Listing 1.04. (Tr. 16). The ALJ further found that Plaintiff did not meet the requirements
for mental disorders under Listing 12 because “the claimant did not experience marked
limitations in the functional areas” or “[any] episodes of decompensation.” (Tr. 17).

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At Step Four, the ALJ concluded that Plaintiff has the residual functional capacity
(RFC) to perform light work activity with the following additional restrictions:
[T]he claimant can lift and carry up to 20 pounds occasionally and 10
pounds frequently; can stand and walk for six hours in an eight hour
workday; sit for six hours in an eight hour workday; pushing and pulling with
the upper left extremity is limited to frequently; can frequently climb stairs
and ramps; should never climb ladders or ropes; frequently stooping,
kneeling, and crouching; never crawling; limited overhead work with the
right upper extremity; limited handling with the left hand and left fingers;
limited to frequent overhead reaching, handling, and fingering with the left
hand due pain and numbness in the left upper extremity; and should avoid
concentrated exposure to vibrations and all hazards, such as dangerous
machinery. The claimant also has a mental impairment; however, she is
able to sustain concentration; and can do tasks within physical tolerations
and skill with regular breaks and supervision; has the ability to sustain for
extended periods, but should be able to complete simple tasks for six to
eight hours in an eight hour period at an appropriate pace and sustain this
limit across days and weeks; the claimant can relate and interact
appropriately with co-workers; can cooperate with routine changes in task;
can accept other workers and accept feedback generally; and the claimant
can adapt to modest task demands in a workplace.
(Tr. 17-18). Based on this RFC, the ALJ determined that Plaintiff was unable to perform
her past relevant work as a cake decorator, stocking clerk, cashier, or deli worker. (Tr.
22).
Accordingly, the ALJ proceeded to the final step of the sequential evaluation. At
Step Five, the ALJ found that there are a significant number of jobs in the national
economy that Plaintiff could perform.

(Tr. 23).

The ALJ based this conclusion on

testimony from a vocational expert (VE), in response to a hypothetical question assuming
an individual of Plaintiff’s age, education, work experience, and RFC. Id. The VE testified
that a hypothetical individual with Plaintiff’s vocational profile and RFC could perform
occupations such as parking lot attendant (500 jobs in Kentucky, 52,000 jobs nationally)
and recreational attendant (1,100 jobs in Kentucky, 128,000 jobs nationally).

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Id.

Therefore, the ALJ concluded that Plaintiff is not under a “disability,” as defined by the
Social Security Act. (Tr. 24).
C.

Analysis of Plaintiff’s Arguments

Plaintiff advances five arguments on appeal. (Doc. # 10-1). Plaintiff’s first four
arguments relate to the weight the ALJ gave to the opinions of various medical and nonmedical sources. Plaintiff complains that the ALJ failed to give sufficient weight to the
opinions of her treating physician, a non-treating psychologist, and her former manager
at Wal-Mart, and that the ALJ gave too much weight to the opinions of the state agency
physicians who reviewed her record. Id. at 7-11. In addition, Plaintiff argues that the
ALJ’s RFC and the corresponding hypothetical posed to the VE were ambiguous and
failed to incorporate her limitations and therefore cannot support a finding of no disability.
Id. at 11-14.
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The ALJ gave “good reasons” for rejecting the opinion of
Plaintiff’s treating physician.

A treating physician’s opinion as to the nature and severity of a claimant’s condition
is entitled to “controlling weight” if it is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with other substantial
evidence in the case record.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir.
2007).

Even if the opinion is not entitled to “controlling weight,” there remains a

presumption, albeit a rebuttable one, “that the opinion of a treating physician is entitled to
great deference.”

Id.

In determining how much deference to give to the treating

physician’s opinion, the ALJ must consider a number of factors, including “the length,
frequency, nature, and extent of the treatment relationship; the supportability and

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consistency of the physician’s conclusions; the specialization of the physician; and any
other relevant factors.” Id.
The ALJ must also “provide ‘good reasons’ for discounting treating physicians’
opinions.” Rogers, 486 F.3d at 242. The ALJ’s reasons must be “sufficiently specific to
make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.” Id. This rule ensures that
claimants understand the disposition of their case, particularly when their own physician
deems them disabled, and also permits meaningful appellate review of the ALJ’s decision.
Id. Thus, even if the ALJ’s decision to disregard the treating physician’s opinion is
supported by the record, the decision may still be reversed if adequate explanation is
missing. Id.
Plaintiff contends that the ALJ failed to give adequate reasons for discounting the
opinion of her treating physician, Dr. Green. (Doc. # 10-1 at 7-11). Dr. Green opined that
Plaintiff’s pain was severe enough to interfere with her attention and concentration for
two-thirds of the day, and that she has a marked limitation in her ability to deal with normal
stresses of competitive employment. (Tr. 484-86). Dr. Green also opined that Plaintiff
could only stand, sit, and walk for a total of less than two hours in an eight hour workday,
and that she could only continuously sit for 30 minutes, stand for 20 minutes, and walk
for 30 minutes. (Tr. 487). Further, Dr. Green opined that Plaintiff needs to lie down at
will to relieve pain, can lift ten pounds or less occasionally and twenty pounds infrequently,
that she has significant limitations in reaching and manipulating her left hand and fingers,
that she can bend or twist infrequently, and that she would have to be absent from work
due to her medical impairments for at least eight days per month. (Tr. 488-90).

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Contrary to Plaintiff’s argument, the ALJ provided “good reasons” for rejecting Dr.
Green’s opinions. These “good reasons” are supported by substantial evidence in the
record. Although Plaintiff had been treated by Dr. Green for approximately thirty years
(Tr. 484), the ALJ explained that he gave Dr. Green’s opinions “little weight” because “the
medical evidence did not support them.” (Tr. 21). More specifically, the ALJ noted that
Dr. Green’s opinions about Plaintiff’s extreme physical limitations were inconsistent with
his own treatment notes, which “showed that the claimant retained a normal gait and had
at least 4/5 strength in all muscle groups.” (Tr. 21, 513; see also Tr. 383, 399, 582 (other
treatment providers noting Plaintiff’s grip strength and normal gait)). In addition, the ALJ
relied on neurologist Dr. Brooks’s notes from December 2012, which “indicated that the
claimant did not have any significant nerve root compression or spinal stenosis.” (Tr. 21,
400).

Thus, “the ALJ properly declined to accord [the treating physician’s] opinion

‘controlling weight’ because there was substantial contrary evidence in the record.” Helm
v. Comm'r of Soc. Sec. Admin., 405 F. App'x 997, 1000 (6th Cir. 2011).
With respect to Plaintiff’s mental capacity, Dr. Green opined that she has poor
ability to relate to coworkers, deal with the public, interact with superiors, deal with work
stress, maintain concentration, and understand, remember, and carry out complex job
instructions. (Tr. 491-93). When explaining why he afforded little weight to Dr. Green’s
opinions, the ALJ noted that Plaintiff “has not received ongoing therapy or counseling for
mental health problems,” and that Dr. Green himself “noted on multiple occasions that
[Plaintiff] had a grossly normal mental status.” (Tr. 20, 337, 379, 383, 525, 532). “These
facts suggest that the claimant’s mental health impairments are not as severe as alleged
because the claimant has been able to function without receiving significant treatment or

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experiencing advanced symptoms.” (Tr. 20). The ALJ went on to explain that the medical
evidence showed that claimant “had some memory problems,” but “retained good
attention span and concentration.” (Tr. 20, 556; but see Tr. 557 (noting problems with
sustained attention)).

Again, the ALJ’s decision not to accord Dr. Green’s opinion

controlling weight is supported by substantial evidence in the record.
Plaintiff argues that “Dr. Green’s opinions are supported by Dr. Brooks’[s] finding
that [Plaintiff] must live with her persistent pain.” (Doc. # 10-1 at 9). Plaintiff does not
quote from or cite to the record in support of that allegation, but she may be referring to
Dr. Brooks’s statement that Plaintiff continued to have neck and arm pain despite “no new
pathology or nerve root compression noted” in the MRI of her cervical spine. (Tr. 400).
However, contrary to Plaintiff’s assertions, this statement supports the ALJ’s decision
because Plaintiff required “[n]o formal follow up from a neurosurgical perspective” and
her nerve conduction studies were “within normal limits.” Id.
Plaintiff also argues that “[t]here is no treating or examining opinion of record that
supports” the ALJ’s RFC. (Doc. # 10-1 at 9). But such an opinion is not required. In fact,
the determination of a claimant’s RFC is an issue specifically “reserved to the
Commissioner because they are administrative findings that are dispositive of a case.”
20 C.F.R. § 404.1527(d). As a result, the ALJ need not base his RFC on a specific
medical opinion, including a treating or examining opinion. See Poe v. Comm’r of Soc.
Sec., 342 F. App’x 149, 157 (6th Cir. 2009). Based on the foregoing, the Court finds that
the ALJ’s rejection of Dr. Green’s opinion was permissible and supported by substantial
evidence.

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2.

The ALJ properly discounted Dr. Fishkoff’s opinion.

The ALJ accorded only limited weight to the opinion of consultative psychological
examiner Dr. Fishkoff, a non-treating physician. (Tr. 20-21). Dr. Fishkoff opined that
Plaintiff has poor concentration and short-term memory and poor ability to tolerate
frustration, conform to social standards, and maintain employment. (Tr. 375). She also
opined that Plaintiff’s ability to sustain attention to perform simple and repetitive tasks was
clinically impaired and that she could not tolerate the stress and pressures associated
with day-to-day work activity. Id.
The ALJ gave “little weight” to Dr. Fishkoff’s opinion because claimant’s treatment
history and medical records did not suggest that she “received counseling or therapy” or
“experienced recurrent exacerbations of advanced symptoms.” (Tr. 21). In addition, the
treatment notes of neurologists indicated that Plaintiff had good memory, concentration,
and attention span. (Tr. 566, 557, 635; but see Tr. 582). Further, the ALJ explained that
Dr. Fishkoff’s assessment was at odds with her own treatment notes about Plaintiff’s
activities of daily living. (Tr. 21). Specifically, the ALJ noted that Plaintiff “liked to read,
watch television, and use a computer to access Facebook.” Id. In addition, Plaintiff
“washed clothes,” “did dishes,” “played with her grandchildren,” “was able to care for her
personal hygiene,” “performed multiple household chores by working with her husband,”
and “went grocery shopping once per month.” Id. The ALJ concluded that these activities
of daily living “show that [Plaintiff] had the ability to perform and maintain concentration
for multiple tasks as well as interact with others in some contexts,” undermining Dr.
Fishkoff’s broad conclusions to the contrary. Id.

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Plaintiff complains that the ALJ “failed to explain what part of the opinions were
given any amount of weight, and what part of the opinions were not given weight.” (Doc.
# 10-1 at 10). But the ALJ explained that he gave both Dr. Fishkoff and Dr. Green’s
opinion “little weight,” and gave good reasons to explain why. No more is required. See
20 C.F.R. § 404.1527(c); see also Rogers, 486 F.3d at 242 (for treating physicians, “good
reasons” must be “sufficiently specific” to make clear the weight given to the opinion and
“the reasons for that weight”). Therefore, the ALJ’s decision to accord Dr. Fishkoff’s
opinion little weight was supported by substantial evidence and was not error.
3.

The ALJ properly discounted the testimony of Plaintiff’s former
manager.

Plaintiff also argues that the ALJ erred in discounting the statements of her former
manager at Wal-Mart. (Doc. # 10-1 at 10). The ALJ has discretion to determine how
much weight to give the opinion of a non-medical source, and should evaluate that opinion
using factors such as how long the source has known the individual, how consistent the
opinion is with other evidence, and how well the source explains the opinion. Cruse v.
Comm’r of Soc. Sec., 502 F.3d 532, 541 (6th Cir. 2007). The ALJ should also explain the
weight given to such opinions so that a claimant or subsequent reviewer can “follow the
adjudicator’s reasoning, when such opinions may have an effect on the outcome of the
case.” Id. (quoting Soc. Sec. Rul. 06-03p, 2006 WL 2329939, at *6). The ALJ did so
here. He explained that he gave the opinion of Plaintiff’s former manager “little weight”
because it lacked the detail and objectivity of medical findings, which suggested that
Plaintiff had less significant limitations, and because of the “natural tendency of close
family members, friends, and work associates to support the claimant’s assertions
uncritically.” (Tr. 22). See Hill v. Comm’r of Soc. Sec., 560 F. App’x 547, 550-51 (6th Cir.
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2014) (ALJ properly discounted a non-medical source opinion that he concluded was not
supported by the objective record and was undermined by other evidence). The ALJ
therefore did not err in his evaluation of the non-medical opinion evidence of Plaintiff’s
former manager.1
4.

The ALJ did not err in giving greater weight to the opinions of
the state agency physicians.

Plaintiff argues that the ALJ erred by according greater weight to the opinions of
the state agency physicians, Dr. Sadler and Dr. Hightower, than to Dr. Green and Dr.
Fishkoff. This argument is unpersuasive. The ALJ explained his reasoning for giving
greater weight to the opinions of Dr. Sadler and Dr. Hightower. He noted that Dr. Sadler’s
opinion on Plaintiff’s physical limitations was consistent with the record as a whole,
including the limitations shown in the medical evidence. (Tr. 20). For instance, Dr. Sadler
noted the medical evidence of Plaintiff’s limitations in her left upper extremity, which the
ALJ reflected in his RFC by limiting the use of her left upper extremity and left hand and
left fingers. (Tr. 20, 17-18). In addition, Dr. Sadler “accounted for degenerative changes
in the claimant’s lumbar and cervical spine by restricting the claimant to light exertional
work activity and by reducing the amount of posturals performed by the claimant.” (Tr.
20). Importantly, the ALJ explained that “[a]dditional reductions [such as those proposed
by Dr. Green] were not justified as the medical evidence showed that the claimant
retained the ability to ambulate without an assistive device” and “there was no evidence
of additional nerve root compression or advanced spinal stenosis.” (Tr. 20; see also Tr.
400).

1

The ALJ also explained that Dr. Hightower’s opinion about Plaintiff’s mental

Plaintiff’s former manager ultimately opined that she was “rehirable,” which further
undermines Plaintiff’s claims. (Tr. 222).
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capacity properly took into account the evidence of her ability to perform activities of daily
living that required concentration, attention, and interactions with others. (Tr. 21).
The ALJ’s decision to accord greater weight to the opinions of the state agency
physicians, rather than the opinions of Drs. Green and Fishkoff, is supported by the
record, and the Court finds no error. See Norris v. Comm’r of Soc. Sec., 461 F. App’x
433, 439 (6th Cir. 2012) (“So long as the ALJ’s decision adequately explains and justifies
its determination as a whole, it satisfies the necessary requirements to survive this court’s
review. Accordingly, we conclude that the ALJ did not err in assigning greater weight to
the opinions of the nonexamining consultants.”); Durrette v. Comm'r of Soc. Sec., No. 943734, 1995 WL 478723, at *3-4 (6th Cir. 1995) (concluding that it was proper for the ALJ
to give greater weight to the reviewing doctors’ opinions because the treating physician’s
opinion was conclusory, not supported by objective evidence, and controverted by other
medical opinion testimony).
Plaintiff’s claim that the state agency physicians did not have the majority of her
records (Doc. # 10-1 at 10) is unpersuasive. The state agency physicians completed their
reviews in September and November of 2013. (Tr. 78, 96, 102). Plaintiff does not attempt
to explain how her condition deteriorated after that time. The ALJ’s reliance is not error.
5.

The RFC is ambiguous, and the ALJ’s determination at Steps
Four and Five is not supported by substantial evidence.

The Plaintiff further claims that the ALJ erred at Step Five because the hypothetical
he posed to the VE based on the RFC was ambiguous and that the RFC did not properly
take into account all of Plaintiff’s limitations. (Doc. # 10-1 at 11-12). According to the
hearing transcript, the ALJ posed a drawn-out hypothetical that became ambiguous when
the ALJ began to discuss mental impairments:
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She also suffers with mental impairments, however she is able
to—
(Pause.)
—able to sustain concentration. She can pursue a task within
physical—
(Pause.)
—can proceed with a task within physical tolerations and skill
levels for an eight-hour workday with regular breaks and
normal levels of supervision, ability to sustain—
(Pause.)
—for extended periods but should be able to complete
simple tasks for six to eight hours in a eight-hour period
at appropriate pace and sustain this limit across days and
weeks. Socially she can relate adequately with coworkers,
can cooperate with routine tasks, and accept other workers
and accept feedback generally—
(Pause.)
—can adapt to modest task demands in a work place.
(Tr. 65-66) (emphasis added). The analogous portion of the RFC in the hearing decision
stated:
The claimant also has a mental impairment; however, she is
able to sustain concentration; and can do tasks within physical
tolerations and skill with regular breaks and supervision; has
the ability to sustain for extended periods, but should be
able to complete simple tasks for six to eight hours in an
eight hour period at an appropriate pace and sustain this
limit across days and weeks; the claimant can relate and
interact appropriately with co-workers; can cooperate with
routine changes in task; can accept other workers and accept
feedback generally; and the claimant can adapt to modest
task demands in a workplace.
(Tr. 18) (emphasis added). In particular, Plaintiff argues that the ALJ’s statement about
her “ability to sustain [pause] for extended periods but should be able to complete simple
tasks for six to eight hours in an eight hour-period” is confusing because “[t]he ALJ never
explained what [Plaintiff] is capable of sustaining.” (Doc. # 10-1 at 11) (emphasis added).
The Court agrees that the quoted limitation is ambiguous, even with context.
Although the Court acknowledges that typographical errors in RFCs are typically

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harmless, in this case, the ambiguity in the RFC and the hypothetical is more than
typographical—it infects the substance of the limitation. See Karger v. Comm’r of Soc.
Sec., 414 F. App’x 739, 749 (6th Cir. 2011) (“[a] deficiency in opinion-writing is not a
sufficient reason to set aside an ALJ’s finding where the deficiency [has] no practical
effect on the outcome of the case”) (internal citations omitted). This ambiguity obscures
the ALJ’s meaning because the Court cannot ascertain whether appropriate limitations
were included in either the RFC or the hypothetical posed to the VE. The ALJ relied on
the VE’s answer to that hypothetical in determining that Plaintiff is not disabled because
a significant number of jobs exist in the national economy that she can perform. (Tr. 2224). The ambiguities in the RFC and hypothetical are therefore a problem for two
reasons—first, because the ALJ bears the burden at Step Five of identifying “jobs in the
economy that accommodate [Plaintiff’s] residual functional capacity,” see Jones, 336 F.3d
at 474, and second, because the ALJ’s determination of no disability must be supported
by substantial evidence.
As an initial matter, it is unclear precisely what Plaintiff has the “ability to sustain,”
whether it be concentration, attention, pace, focus, tasks with supervision, tasks without
supervision, or something else.

(Doc. # 10-1 at 11). The word “but” also creates

ambiguity because it is a conjunction that indicates contrast with an earlier statement.
See, e.g., https://www.merriam-webster.com/dictionary/but.

Here, the phrase before

“but” says that Plaintiff has an “ability to sustain for extended periods.” (Tr. 65). This is
confusing because the phrase following “but”—that Plaintiff can “complete simple tasks
for six to eight hours in an eight hour-period . . . across days and weeks”—seems to be
in agreement, rather than in contrast, with an “ability to sustain for extended periods.” Id.

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This raises questions about what the ALJ meant by Plaintiff’s “ability to sustain for
extended periods.” For instance, the ALJ could have meant that Plaintiff does not have
the ability to sustain concentration on complicated tasks for extended periods, but does
have the ability to complete simple tasks for six to eight hours. Or the error could have
been in the ALJ’s use of the word “but” itself. Perhaps the ALJ meant to use the word
“and” to elaborate on Plaintiff’s abilities. These distinctions matter. At the hearing, the
VE testified that if Plaintiff “was off task due to a combination of her physical pain as well
as her mental limitations 30 percent of the workday,” or if she “needed additional
supervision to stay on task for the simple repetitive work,” she would not be able to
perform the jobs the VE mentioned. (Tr. 67-68). As a result, the Court cannot conclude
that this ambiguity is harmless.
The Commissioner offers no explanation of the ALJ’s meaning, instead pointing
out that the ALJ’s hypothetical was consistent with the RFC. (Doc. # 12 at 13-14). Indeed,
both were ambiguous. The Court could attempt to fill the gap and guess what the ALJ
meant, but that is not the Court’s role. The Court declines to engage in guesswork
regarding the ALJ’s intended meaning, or, relatedly, the meaning the VE took from the
hypothetical. At bottom, the ambiguous language the ALJ used prevents the Court from
considering whether and what mental limitations are included, and therefore prevents the
Court from determining whether the RFC is supported by substantial evidence and
whether the VE’s testimony is reliable.
“[W]hile a ‘deficiency in opinion-writing is not a sufficient reason to set aside an
ALJ’s finding where the deficiency [has] no practical effect on the outcome of the case,’
inaccuracies, incomplete analysis and unresolved conflicts of evidence can serve as a

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basis for remand.” Karger, 414 F. App’x at 749 (internal citations omitted). In this case,
“[w]ithout knowing whether the ALJ found that Plaintiff had non-exertional limitations and
what those specific limitations are, the Court cannot determine whether the hypothetical
question posed to the VE was necessary, accurate, and/or constituted substantial
evidence to support the ALJ’s findings” at Step Five. Johnson v. Comm’r of Soc. Sec.,
No. 08-13551, 2009 WL 3126319, at *7 (E.D. Mich. Sept. 25, 2009). For that reason, the
Court finds that the ALJ’s decision is not supported by substantial evidence. Therefore,
the Court will remand the case so that the ALJ can make a more specific finding regarding
Plaintiff’s RFC, and proceed to Step Five if necessary.
III.

CONCLUSION
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)

Plaintiff Helen Vonlinger’s Motion for Summary Judgment (Doc. # 10) is

hereby GRANTED;
(2)

Defendant Commissioner’s Motion for Summary Judgment (Doc. # 12) is

hereby DENIED;
(3)

This action is hereby REMANDED to the Commissioner under Sentence

Four of 42 U.S.C. § 405(g) with instructions to adequately address the specific finding of
Plaintiff’s RFC and, if necessary, whether significant numbers of jobs exist in the national
economy for an individual of claimant’s age, education, work experience, and residual
functional capacity, consistent with this Memorandum Opinion and Order; and
(4)

A Judgment will be entered contemporaneously herewith.

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This 13th day of June, 2017.

K:\DATA\SocialSecurity\MOOs\Lexington\16-319 Vonlinger MOO.docx

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