Estep v. Social Security, Commissioner of

Filing 22

ORDER rejecting Report and Recommendations 19 , sustaining plaintiff's objections 20 , granting plaintiff's Motion for Summary Judgment 11 17 , denying defendant's Motion for Summary Judgment 18 and Remanding to the SSA. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TAUNA LYNN ESTEP,
CASE NO. 15-CV-10329
HONORABLE GEORGE CARAM STEEH

Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/

OPINION AND ORDER REJECTING MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION (DOC. 19), SUSTAINING PLAINTIFF’S
OBJECTIONS (DOC. 20), GRANTING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT (DOCS. 11, 17), DENYING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT (DOC. 18) AND REMANDING TO THE SSA
Plaintiff appeals from the final decision of the Commissioner of Social Security
denying her application for disability insurance benefits (“DIB”). This matter is before the
Court on the parties’ cross-motions for summary judgment. The motions were referred to
Magistrate Judge Patricia Morris for a report and recommendation (“R&R”). The Magistrate
Judge recommends that the Court deny Plaintiff’s motion for summary judgment and grant
Defendant’s motion for summary judgment. (Doc. 18). Plaintiff has filed objections to the
Magistrate Judge’s R&R. (Doc. 20). For the reasons that follow, the Magistrate Judge’s
R&R will be rejected; Plaintiff’s objections will be sustained, and her motion for summary
judgment will be granted; Defendant’s motion for summary judgment will be denied; the
decision of the commissioner will be reversed; and this matter will be remanded to the
commissioner for further consideration in light of this opinion.

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I. BACKGROUND
Plaintiff does not object to the Magistrate Judge’s recitation of the facts and
procedural history in the R&R. The Court adopts and incorporates that portion of the R&R
in full without repeating it here. This opinion addresses Plaintiff’s objections to the R&R.
Additional facts will be set forth in the analysis below, as needed.
II. LEGAL STANDARDS
A.

Objections to a Magistrate Judge’s R&R

A party may file timely written objections to a magistrate judge’s proposed findings
and recommendations. 28 U.S.C. § 636(b)(1). “A judge of the court shall make a de novo
determination of those portions of a report or specified proposed findings or
recommendations to which objection is made.” Id. “A judge of the court may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate.”
Id.
B.

Judicial Review of an ALJ’s Decision

Judicial review of a Social Security disability benefits application is limited to
determining whether “the commissioner has failed to apply the correct legal standards or
has made findings of fact unsupported by substantial evidence in the record.” Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). A reviewing court may not resolve
conflicts in the evidence or decide questions of credibility. Brainard v. Sec’y of HHS, 889
F.2d 679, 681 (6th Cir. 1989). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971).

It is “more than a scintilla but less than a

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preponderance.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 399 (1938). “Substantial
evidence exists when a reasonable mind could accept the evidence as adequate to support
the challenged conclusion, even if that evidence could support a decision the other way.”
Casey v. Sec’y of HHS, 987 F.2d 1230, 1233 (6th Cir. 1993); Lindsley v. Comm’r of Soc.
Sec., 560 F.3d 601, 604 (6th Cir. 2009). The substantial evidence standard is deferential
and “presupposes that there is a zone of choice within which the decisionmakers can go
either way, without interference with the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th
Cir. 1986).
When determining whether the commissioner’s decision is supported by substantial
evidence, the reviewing court must take into consideration the entire record as a whole.
Futernick v. Richardson, 484 F.2d 647, 649 (6th Cir. 1973). If the Appeals Council declines
to review the ALJ’s decision, the court’s review is limited to the record and evidence before
the ALJ, Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993), regardless if the ALJ actually
cited to the evidence. Walker v. Sec’y of HHS, 884 F.2d 241, 245 (6th Cir. 1989).
Nonetheless, there is no requirement that the reviewing court discuss all of the evidence
in the record. Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006).
III. ANALYSIS
A.

The ALJ’s Failure to Discuss the Notes of Plaintiff’s Social Worker

Plaintiff first objects that “the Magistrate Judge improperly excused the ALJ’s failure
to explicitly consider the opinions of Patricia Sullivan, MSW,” in determining Plaintiff’s
residual functional capacity (RFC). As the Magistrate Judge acknowledged, the ALJ’s
written decision does not expressly mention Plaintiff’s social worker, Ms. Sullivan, nor does
it cite Ms. Sullivan’s notes concerning Plaintiff. The Magistrate Judge nonetheless held that
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the ALJ’s failure to expressly consider Ms. Sullivan’s notes did not constitute reversible
error. The Magistrate Judge noted that the ALJ stated in her decision that she had
“careful[ly] consider[ed] . . . the entire record.” (Doc. 7-2 at 19, 22). The Magistrate Judge
further noted that the ALJ’s assessment of Plaintiff’s RFC did incorporate some of Plaintiff’s
limitations that are documented in Ms. Sullivan’s notes. Since a social worker is not an
“acceptable medical source,” but rather an “other source” entitled to no special deference,
the Magistrate Judge concluded that the ALJ had not erred just because she failed to
specifically mention Ms. Sullivan’s observations or opinions.
The Court respectfully disagrees with the Magistrate Judge and agrees with Plaintiff
that the ALJ erred in failing to discuss Ms. Sullivan’s notes in her decision.

The

commissioner’s disability determination must be based on “all evidence available in [the
claimant’s] case record.” 42 U.S.C. § 423(d)(5)(B). In order for a disability claimant to
establish that he or she has an impairment, the claimant must submit evidence from an
“acceptable medical source.” 20 C.F.R. § 404.1513(a). “Acceptable medical sources”
include licensed physicians, psychologists, optometrists, podiatrists, and “speech-language
pathologists.” Id. Evidence from acceptable medical sources is also relevant in assessing
the claimant’s RFC. See SSR 96-8p, 1996 WL 374184 (July 2, 1996). Certain acceptable
medical sources are classified as “treating sources,” whose opinions are ordinarily entitled
to “controlling weight.” 20 C.F.R. §§ 404.1502, 404.1527(c)(2); see also SSR 06-03p, 2006
WL 2329939 (Aug. 9, 2006). In addition to evidence from acceptable medical sources, the
claimant may also submit evidence from “other sources.” 20 C.F.R. § 404.1513(d). “Other
sources” include medical sources that are not “acceptable medical sources,” educational
personnel, “[p]ublic and private social welfare agency personnel,” and “[o]ther non-medical
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sources.” Id. Unlike “acceptable medical sources,” “other sources” are never classified as
“treating sources” and therefore they are not entitled to particular deference under the
Social Security regulations. See SSR 06-03p.
In weighing an opinion from an “acceptable medical source,” the commissioner is
required to consider a number of factors:
•

The “[e]xamining relationship” between the source and the claimant;

•

The “[t]reatment relationship” between the source and the claimant, including
the “[l]ength of the treatment relationship and the frequency of examination,”
and the “[n]ature and extent of the treatment relationship”;

•

The support or evidence for the opinion, including “medical signs and
laboratory findings”;

•

The extent to which the opinion is consistent with the rest of the claimant’s
record;

•

The source’s medical speciality; and

•

“Other factors.”

20 C.F.R. § 404.1527(c); see also SSR 06-03p. The Social Security regulations do not
provide a set of factors for the commissioner to weigh when considering evidence from
“other sources”—even “other sources” who have provided medical treatment or have seen
the claimant in their professional capacity. But the commissioner explained in Social
Security Ruling 06-03p that
these same factors [in 20 C.F.R. § 404.1527(c)] can be applied to opinion
evidence from “other sources.” These factors represent basic principles that
apply to the consideration of all opinions from medical sources who are not
“acceptable medical sources” as well as from “other sources,” such as
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teachers and school counselors, who have seen the individual in their
professional capacity.
Moreover, it will rarely be enough for the commissioner to silently “consider” the abovementioned factors in deciding how much weight to give to an “other source” who has seen
the claimant in the source’s professional capacity. Rather,
[s]ince there is a requirement to consider all relevant evidence in an
individual’s case record, the case record should reflect the consideration of
opinions from medical sources who are not “acceptable medical sources” and
from “non-medical sources” who have seen the claimant in their professional
capacity. Although there is a distinction between what an adjudicator must
consider and what the adjudicator must explain in the disability determination
or decision, the adjudicator generally should explain the weight given to
opinions from these “other sources,” or otherwise ensure that the discussion
of the evidence in the determination or decision allows a claimant or
subsequent reviewer to follow the adjudicator's reasoning, when such
opinions may have an effect on the outcome of the case.
SSR 06-03p (emphasis added).
The Sixth Circuit has repeatedly recognized that the commissioner must make an
adequate record of the commissioner’s consideration of an “other source” who has seen
the claimant in the source’s professional capacity. See Hill v. Comm’r of Soc. Sec., 560 F.
App’x 547, 550 (6th Cir. 2014) (“An ALJ must consider other-source opinions and ‘generally
should explain the weight given to opinions for these ‘other sources[.]’” (quoting SSR 0603p) (alteration in original)); Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 378 (6th Cir.
2013) (criticizing the ALJ’s failure to mention the claimant’s therapist who saw the claimant
on a regular basis for thirteen months); Cole v. Astrue, 661 F.3d 931, 939 & n.4 (6th Cir.
2011) (holding that a social worker was an “other source” entitled to consideration “due to
her expertise and long-term relationship” with the claimant and that the ALJ had erred in
failing to mention her); Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 541-42 (6th Cir. 2007)
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(refusing to apply SSR 06-03p retroactively, but criticizing the ALJ’s failure to provide any
rationale for the ALJ’s decision to ignore the opinion of a nurse practitioner other than that
she “is neither a medical doctor nor a vocational expert, and thus lacks the credentials for
making” a relevant diagnosis); see also Edwards v. Comm’r of Soc. Sec., No. 1:14-CV-832,
2016 WL 54690, at *7 (W.D. Mich. Jan. 5, 2016) (“While the ALJ is not required to explicitly
discuss each of [the 20 C.F.R. § 404.1527(c)] factors [in weighing an ‘other source’], the
record must nevertheless reflect that the ALJ considered those factors relevant to his
assessment.”); Cappo v. Comm'r of Soc. Sec., No. 2:14-CV-210, 2015 WL 6510474, at *8*9 (W.D. Mich. Oct. 28, 2015) (finding that an ALJ had not erred by discounting a social
worker’s opinion where the ALJ had determined that the social worker’s opinion was
inconsistent with the claimant’s own reported activity level and the observations of other
medical providers); Drain v. Comm’r of Soc. Sec., No. 14-CV-12036, 2015 WL 4603038,
at *4 (E.D. Mich. July 30, 2015) (“So long as the ALJ addresses the opinion of a social
worker and gives reasons for crediting or not crediting the opinion, the ALJ has complied
with the regulations.”); Duderstadt v. Colvin, No. 3:13-CV-302, 2014 WL 3508897, at
*10-11 (S.D. Ohio July 15, 2014), report and recommendation adopted sub nom.
Duderstadt v. Comm'r of Soc. Sec., No. 3:13-CV-302, 2014 WL 4829498 (S.D. Ohio Sept.
29, 2014) (remanding where the “ALJ’s decision neither consider[ed] nor mention[ed] the
supportability or consistency of the opinion provided by [the claimant’s therapist] and [did]
not refer to any other regulatory factor as a ground for rejected his opinions”).
In the instant case, the ALJ erred by failing to explain the weight she gave to the
opinions of Ms. Sullivan, Plaintiff’s social worker. Indeed, the ALJ did not even mention Ms.
Sullivan. This is a serious oversight, given that Ms. Sullivan appears to have counseled
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Plaintiff for a period of about eight months. (Doc. 7-7 at 88, 101). In the administrative
record, there are some twenty-three pages of handwritten notes and other documents from
Ms. Sullivan’s sessions with Plaintiff. (Doc. 7-7 at 80-102). Many of Ms. Sullivan’s notes
appear have been based on Plaintiff’s self-reported symptoms, but Ms. Sullivan also made
her own observations. At Ms. Sullivan’s first meeting with Plaintiff, in May 2011, Ms.
Sullivan determined that Plaintiff was “experiencing a stress reaction [which is] severe.”
(Doc. 7-7 at 81). She found that Plaintiff suffered from acute stress disorder, adjustment
disorder, and post-traumatic stress disorder (PTSD). Id. Ms. Sullivan observed several
times over the next few months that Plaintiff was still experiencing PTSD-like symptoms
and was having anxiety problems. (Doc. 7-7 at 88-89). In August 2011, Ms. Sullivan noted
that Plaintiff had reported problems concentrating. (Doc. 7-7 at 92). She also noted that
Plaintiff was frustrated and surprised that she had still not recovered from a traumatizing
incident at her work. Id. Ms. Sullivan made similar notes over the next few months and
also noted meeting with Plaintiff’s attorney to discuss Plaintiff’s workers’ compensation
case. (Doc. 7-7 at 95, 101). In December 2011, Ms. Sullivan noted that Plaintiff reported
being “[e]xtremely tired” and “in pain.” (Doc. 7-7 at 101). Plaintiff saw Ms. Sullivan for a
final time in January 2012, and Ms. Sullivan noted that Plaintiff was “in good spirits” despite
her “chronic [illegible] and nervous, anxious overall feelings.” Id.
Therefore, ALJ violated SSR 06-03p when she failed to explain the weight that she
gave to Ms. Sullivan’s opinions about Plaintiff (or even mention Ms. Sullivan). And given
that there is nothing in the ALJ’s decision that indirectly indicates that the ALJ considered
Ms. Sullivan’s notes, it is also possible that the ALJ violated the requirement that she
consider all the relevant evidence.
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Whether this violation of SSR 06-03p alone requires the Court to remand is a more
difficult question. Plaintiff argues that the ALJ’s failure to follow SSR 06-03p constitutes per
se reversible error. Plaintiff cites Blakley v. Commissioner of Social Security, 581 F.3d 399
(6th Cir. 2009), in support. But Blakley is not directly controlling, because it involved an
ALJ’s violation of the “treating source” rule, not a violation of SSR 06-03p. The treatingsource rule gives controlling weight to the opinion of a “treating source” if certain
requirements are satisfied. See 20 C.F.R. § 404.1527(c)(2).

Specifically, if the

commissioner “find[s] that a treating source’s opinion . . . is well-supported by medically
acceptable . . . techniques and is not inconsistent with the other substantial evidence in [the
claimant’s] case record, [the commissioner must] give it controlling weight.” Id. The
regulation further provides that the commissioner “will always give good reasons in [his or
her decision] for the weight [given to the] treating source’s opinion.” Id. In Blakley, the ALJ
failed to adequately explain her reasons for discounting the claimant’s treating sources.
581 F.3d at 409. The court, following its earlier holding in Wilson v. Commissioner of Social
Security, 378 F.3d 541 (6th Cir. 2004), found this to be reversible error. The court
explained that “even if we were to agree that substantial evidence supports the ALJ’s
weighing of each of these doctors’ opinions, substantial evidence alone does not excuse
non-compliance with 20 C.F.R. [§ 404.1527(c)(2)] as harmless error.” Id. at 410. Rather,
where the ALJ fails to give good reasons on the record for according less
than controlling weight to treating sources, we reverse and remand unless
the error is a harmless de minimis procedural violation. Such harmless error
may include the instance where “a treating source’s opinion is so patently
deficient that the Commissioner could not possibly credit it,” or where the
Commissioner “has met the goal of . . . the procedural safeguard of reasons.”

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Id. at 409 (quoting Wilson, 378 F.3d at 547) (citation omitted). The reason for stringently
enforcing the treating-source rule is that when a “regulation bestows a ‘substantial right’ on
parties before the agency, . . . ‘it is incumbent upon agencies to follow their own procedures
. . . even where the internal procedures are possibly more rigorous than otherwise would
be required.’” Wilson, 378 F.3d at 547 (quoting Morton v. Ruiz, 415 U.S. 199, 235 (1974))
(second omission in original)). “[T]o recognize substantial evidence as a defense to
non-compliance with [20 C.F.R. § 404.1527(c)(2)] would afford the Commissioner the ability
the violate the regulation with impunity and render the protections promised therein
illusory.” Id. at 546.
The Sixth Circuit has declined to apply the reasoning of Wilson and Blakley outside
of the context of the treating-source rule. See, e.g., Rabbers v. Comm’r Soc. Sec. Admin.,
582 F.3d 647, 656 (6th Cir. 2009) (“Wilson’s circumscribed form of harmless error review
has not been applied outside the context of the reasons-giving requirement of [20 C.F.R.
§ 404.1527(c)(2)], and we decline the invitation to extend it to this case.”). But there are
persuasive reasons to extend the reasoning of Wilson and Blakley to failures to adequately
explain the weight given to “other sources” who have seen a claimant in their professional
capacity. One such reason is the importance “other sources” in the modern healthcare
system. As the commissioner noted in SSR 06-03p,
[w]ith the growth of managed health care in recent years and the emphasis
on containing medical costs, medical sources who are not “acceptable
medical sources,” such as nurse practitioners, physician assistants, and
licensed clinical social workers, have increasingly assumed a greater
percentage of the treatment and evaluation functions previously handled
primarily by physicians and psychologists. Opinions from these medical
sources, who are not technically deemed “acceptable medical sources” under
our rules, are important and should be evaluated on key issues such as
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impairment severity and functional effects, along with the other relevant
evidence in the file.
See also Cole, 661 F.3d at 939 n.4 (“[M]any unemployed disability applicants receive
treatment at clinics that render care to low income patients by providing mental health
treatment through such [non-acceptable-medical-source] counselors. The practical realities
of treatment for those seeking disability benefits underscores the importance of addressing
the opinion of a mental health counselor as a valid ‘other source’ providing ongoing care.”).
The Court does not today need to decide whether the reasoning of Wilson and
Blakley applies to the violation at issue in this case, because, as explained below, there is
not substantial evidence to support the ALJ’s disability determination.
B.

The ALJ’s Summary Finding That Plaintiff’s Husband Was Not
Credible

Next, Plaintiff argues that the Magistrate Judge erred in concluding that the ALJ had
given adequate consideration to the function report prepared by Plaintiff’s husband. In her
decision, The ALJ addressed the function report in a single sentence: “The husband’s
opinion . . . is given no weight as to the issue of disability; he is not a treating source and
has a natural and financial interest in seeking the claimant getting benefits.” (Doc. 7-2 at
21). The Magistrate Judge concluded that the ALJ did not err in disregarding the function
report. The Magistrate Judge noted that many of Plaintiff’s limitations that her husband
reported in the function report are in fact incorporated into the ALJ’s RFC, and the
Magistrate Judge also found that the ALJ’s credibility determination was proper. (Doc. 19
at 15).
The Court respectfully disagrees with the Magistrate Judge and holds that the ALJ
erred in summarily discounting the husband’s function report. It is the job of “the ALJ, and
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not the reviewing court, to evaluate the credibility of witnesses.” Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 247 (6th Cir. 2007). A court must accept the ALJ’s credibility
determinations if they are “supported by substantial evidence.” Cruse v. Comm’r of Soc.
Sec., 502 F.3d 532, 542 (6th Cir. 2007). But the “ALJ is not free to make credibility
determinations based solely upon an ‘intangible or intuitive notion about an individual’s
credibility.’” Rogers, 486 F.3d at 247 (quoting SSR 96-7p, 1996 WL 374186 (July 2, 1996)).
Moreover, “[t]he testimony of lay witnesses . . . is entitled to perceptible weight . . . if it is
fully supported by the reports of the treating physicians.” Simons v. Barnhart, 114 F. App’x
727, 733 (6th Cir. 2004) (citing Lashley v. Sec’y of Health & Human Servs., 708 F.2d 1048,
1054 (6th Cir. 1983)). The commissioner has provided a set of factors to be considered
in weighing evidence from lay witnesses: “the nature and extent of the relationship, whether
the evidence is consistent with other evidence, and any other factors that tend to support
or refute the evidence.” SSR 06-03p.
Here, the ALJ did not rely on any evidence in the record in deciding to give “no
weight” to the Plaintiff’s husband’s function report. Rather, the ALJ relied purely on the
intuitive (and commonsense) notion that a husband has a financial interest in the outcome
of his wife’s DIB case. The problem with this rationale is that, if it is applied in every case,
an ALJ will never give any consideration to the observations of a claimant’s spouse. The
other problem with this approach is that it would seem to apply a fortiorari to the testimony
of the claimant. No one, after all, is more interested in the outcome of a DIB case than the
claimant.
While it was of course permissible for the ALJ to take into account the Plaintiff’s
husband’s interest in the case in weighing his credibility, the ALJ should also at least have
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considered the degree of consistency of his function report with the other evidence in the
record. Plaintiff’s husband’s function report is largely corroborated by the objective medical
evidence in the record. As the ALJ explained in her decision, Dr. Sachin Nagarkar and Dr.
Harold Sommerschield both noted that Plaintiff was experiencing memory and
concentration problems and anxiety. (Doc. 7-2 at 21). Dr. Nagarkar diagnosed Plaintiff
with major depression, and Dr. Sommerschield diagnosed her with generalized anxiety
disorder and PTSD. Id. The Disability Determination Services (DDS) assessment is largely
consistent with the findings of Drs. Nagarkar and Sommerschield. (See 7-3 at 7-8).
In the Plaintiff’s husband’s function report, the husband reported that Plaintiff’s “pain
limits her ability to perform [work]. She has to nap daily. She has memory & concentration
problems. And needs my help.” (Doc. 7-6 at 24). In response to a prompt about Plaintiff’s
personal care limitations, Plaintiff’s husband wrote that she “sometimes needs my help with
brushing [her hair].” (Doc. 7-6 at 25). Plaintiff’s husband wrote that he has to remind
Plaintiff to take her medication, and that although Plaintiff does some housework, Plaintiff
does not cook because “she has problems concentrating [and] could leave stove unattended [sic].” (Doc. 7-6 at 26). In response to a prompt asking how well Plaintiff followed
spoken instructions, Plaintiff’s husband wrote: “not well. Has to be written or reminded.”
(Doc. 7-6 at 29). Moreover, Plaintiff’s ability to follow written instructions is “fair. Needs
help.” Id. Plaintiff’s husband also reported that Plaintiff goes outdoors about twice a week
but that she never goes alone and never drives because “she is too nervous.” (Doc. 7-6
at 27). He wrote that Plaintiff needs help handling money because she “gets confused
easy [sic].” (Doc. 7-6 at 28). Plaintiff’s husband also wrote that Plaintiff has occasional
visits and phone conversations with friends, but that she “avoids large crowds, loud
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situations, and long visits.” (Doc. 7-6 at 28-29). When asked whether he noticed any
unusual behavior on the part of Plaintiff, Plaintiff’s husband wrote that she “startles easy
[sic]. Emotionally fragile.” (Doc. 7-6 at 30). Thus, it is apparent that Plaintiff’s husband’s
function report is corroborated by the objective medical evidence, although it also goes
beyond the medical evidence to some extent. The ALJ should have considered the degree
of consistency of the husband’s report with the medical evidence in making her credibility
determination.
Defendant argues that because the ALJ did not have to mention Plaintiff’s husband’s
function report at all, the ALJ acted entirely properly in disposing of the husband’s function
report summarily on the ground that the husband is an interested party. (See Doc. 18 at
21 (citing Pasco v. Comm’r of Soc. Sec., 137 F. App’x 828, 842 (6th Cir. 2005))). But the
fact that the ALJ does not have to mention all of the evidence does not mean that the Court
should ignore the ALJ’s error when the ALJ has documented her error with respect to a
piece of evidence in her decision. Therefore, the Court concludes that the ALJ erred in
giving only summary consideration to Plaintiff’s husband’s function report. As the Court
explains below, this error, combined with others, renders the ALJ’s decision unsupported
by substantial evidence.
C.

The RFC Assessment

Plaintiff’s third and final objection is that the Magistrate Judge incorrectly concluded
that the ALJ’s RFC assessment is adequately supported by the record. The ALJ used this
RFC assessment to formulate hypotheticals that the ALJ posed to a vocational expert, and
the expert’s answers led the ALJ to determine that Plaintiff is not disabled. (See Doc. 7-2
at 49-50, 65-67). Plaintiff specifically takes issue with the ALJ’s conclusion that Plaintiff
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retained the residual capacity to perform light work “limited to 3 to 4-step repeated routine
tasks.” (Doc. 7-2 at 46). Plaintiff points out that the ALJ made an express factual finding
that Plaintiff has “moderate difficulties” with “concentration, persistence or pace.” (Doc. 7-2
at 18). Plaintiff argues that Plaintiff’s acknowledged moderate difficulties with concentration
were not adequately accounted for by the RFC’s “limitation to routine, repetitive work”
involving three or four steps. (Doc. 20 at 9). For the reasons explained below, the Court
agrees with Plaintiff.
A court’s review of the commissioner’s RFC assessment is limited to determining
whether it is supported by substantial evidence. See Smith v. Halter, 307 F.3d 377, 378
(6th Cir. 2001). “Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. Where a claimant has moderate
difficulties with concentration, an RFC assessment that finds the claimant capable of
completing “simple, unskilled routine” work will generally not be supported by substantial
evidence. Brown v. Comm’r of Soc. Sec., 672 F. Supp. 2d 794, 797 (E.D. Mich. 2009)
(finding inadequate a limitation to one- or two-step routine tasks); see also Ealy v. Comm’r
of Soc. Sec., 594 F.3d 504, 516-17 (6th Cir. 2010); Edwards v. Barnhart, 383 F. Supp. 2d
920, 930 (E.D. Mich. 2005). This is because such a limitation “‘deals with the level of
sophistication or intensity of the work that can be done’” and “does not address the
frequency of how often the person can concentrate.” Brown, 672 F. Supp. 2d at 797
(quoting Benton v. Comm’r of Soc. Sec’y, 511 F. Supp. 2d 842, 846 (E.D. Mich. 2007)).
As mentioned above, the ALJ made an express finding that Plaintiff has moderate
difficulties with concentration, persistence, or pace. Given this finding, the ALJ’s RFC
assessment that Plaintiff is capable of work limited to three- or four-step routine tasks is not
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supported by substantial evidence. This three- or four-step limitation does not account for
Plaintiff’s moderate concentration problem but rather merely accounts for the Plaintiff’s level
of sophistication.

The ALJ used this inadequate RFC assessment in posing two

hypotheticals to the vocational expert. The vocational expert found that there are a
significant number of jobs in the Michigan and national economies for workers with a
limitation to three- to four-step routine tasks. The ALJ used the vocational expert’s answer
in determining that Plaintiff is not disabled, and therefore the ALJ’s disability determination
is not supported by substantial evidence.
The ALJ did pose a hypothetical to the vocational expert that accounted for Plaintiff’s
moderate concentration problem, but the ALJ did not use the vocational expert’s answer
in determining that Plaintiff is not disabled. Specifically, the ALJ added an additional
limitation to the earlier hypotheticals, asking the vocational expert whether jobs would be
available if “the individual [were] off-task at least 20 percent of the workday, due to
interfering thoughts.” (Doc. 7-2 at 67). The vocational expert responded that this additional
limitation “would not allow a person to maintain their employment.” Id.1 Had the ALJ used
the answer to this hypothetical in making her disability determination, the ALJ would have

1

The ALJ also posed additional hypotheticals to the vocational expert which took
into account some of Plaintiff’s other claimed limitations. The ALJ asked the expert
whether “an individual [who] would need to take a nap as needed, between two to four
hours on a typical workday” would be able to maintain employment. (Doc. 7-2 at 67). The
expert responded that “[t]hat also would not be conducive to any type of work environment.
They couldn’t maintain the job . . . .” Id. The ALJ asked the expert, “What if the individual
would have to take unscheduled breaks, on a regular basis?” Id. The expert responded,
“That also would be disruptive to any type of work environment, and would not be allowable
. . . .” Id. The ALJ clearly did not use the expert’s responses in making her disability
determination, since if ALJ had, she would have found Plaintiff to be disabled.
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found Plaintiff to be disabled, and this finding would have been supported by substantial
evidence.
Moreover, the facts of this case are distinguishable from those of Smith, 307 F.3d
at 379, where the Sixth Circuit found that the ALJ’s hypothetical limiting the claimant to
work that is “routine and low stress” was supported by sufficient evidence. In Smith, the
ALJ had made a factual finding that the claimant “often” had problems concentrating. The
ALJ then asked the vocational expert whether there were jobs in the national economy for
someone who is limited to work that is “routine and low stress,” and the expert answered
in the affirmative. Id. The claimant argued that this hypothetical failed to account for his
concentration problems. Id. The Sixth Circuit pointed out, however, that in making the
finding that the claimant “often” had problems concentrating, the ALJ simply checked a box
on a Social Security Agency form. Id. Moreover, the ALJ had relied on the testimony of
four of the claimant’s doctors, “who characterized [the claimant’s] concentration problems
as minimal or negligible.” Id. The Sixth Circuit therefore found that the ALJ’s hypothetical
adequately incorporated the claimant’s limitations and that the vocational expert’s answer
was sufficient to support the ALJ’s decision. Id.
The instant case at first glance would appear to be analogous. After all, in Smith the
ALJ found that the claimant “often” had concentration problems, and here the ALJ found
that Plaintiff had moderate concentration problems. But unlike in Smith, where the ALJ had
based his assessment that Plaintiff “often” had concentration problems on the testimony
of four doctors who characterized the concentration problems as negligible, here all of the
record evidence indicates that Plaintiff’s concentration problems are more serious.

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The ALJ’s decision shows that the ALJ made her RFC assessment after considering
the opinions and notes of several different mental-health providers, the DDS assessment,
and Plaintiff’s testimony. (See Doc. 7-2 at 21). First, the ALJ credited Dr. Nagarkar’s
observations that Plaintiff had experienced “reduced concentration and memory” and
anxiety problems. (Doc. 7-2 at 21; see Doc. 7-7 at 66). The ALJ also credited Dr.
Sommerschield’s observations, including his observations that Plaintiff was “anxiously
dependent upon her husband,” “appeared tense throughout [Plaintiff’s] interview,” and “had
mildly pressured speech but was well organized.” (Doc. 7-2 at 21; see Doc. 7-7 at 2-7).
The ALJ did not expressly mention in her decision that Dr. Sommerschield had found that
Plaintiff “was unable to subtract serial 7's from 100: ‘100, 93 and 84'. At this point in the
interview she was completely unable to focus and continue with this task.” (Doc. 7-7 at 6).
As explained above, the ALJ did not mention Plaintiff’s social worker, Ms. Sullivan. Like
Drs. Nagarkar and Sommerschield, Ms. Sullivan noted Plaintiff’s concentration problems,
although those notations may simply reflect Plaintiff’s subjective reports. (See Doc. 7-7 at
92).
The ALJ gave “[s]ome weight” to the DDS assessment. (Doc. 7-2 at 21). The DDS
assessment admittedly found that Plaintiff “retains the capacity to perform simple tasks on
a sustained basis.” (Doc. 7-3 at 11). But it also found that Plaintiff had “moderate”
difficulties with concentration, persistence or pace and found that Plaintiff’s statements
regarding her symptoms were “moderately credible.” (Doc. 7-3 at 7-8, 11).
The ALJ considered Plaintiff’s testimony, but found her “allegations regarding the
limiting effects and the severity of the symptoms of her impairments . . . only partially
credible.” (Doc. 7-2 at 22). Plaintiff testified that she likes to read, “but I have to reread
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sections a lot. . . . I’ll get two pages read and not remember what I read, so I’ll have to go
back and read it.” (Doc. 7-2 at 43). She also testified, “I’m fearful that I’m going to forget
taking my medication or I’m going to double up on it, so I have to keep a list on the wall .
. . . And my husband will check on it [too].” (Doc. 7-2 at 57). When asked by her counsel
if she was able to follow instructions, Plaintiff testified
Some days I might be okay and some days I might get distracted, and forget
that I was even [washing the dishes]. Most days I would forget I was even
doing it probably. Just this morning I noticed that a plant needed to be
watered so I put the thing that we water with in the sink and started filling it
up and went to the restroom, and totally forget that I was even doing that until
my husband said; “I watered that plant for you.”
(Doc 7-2 at 58).

The ALJ disregarded Plaintiff’s husband’s testimony, which, as

summarized in the sections above, largely corroborates Plaintiff’s testimony about her
concentration problems.
After a careful review of the record, there is simply no evidence that is remotely
similar to the contradictory evidence from four doctors in Smith. Thus, after the ALJ made
a finding that Plaintiff had a moderate concentration problem, she was not justified in
making an RFC assessment—and basing her disability determination on hypotheticals
posed to a vocational expert—that failed to account for this moderate limitation. The RFC
assessment is not supported by substantial evidence, and therefore the resulting disability
determination is also not supported by substantial evidence.
D.

Remand for Further Consideration

The Court is mindful that the commissioner’s disability determination should be
affirmed if it is supported by substantial evidence. But after consideration of the record as
a whole—noting, in particular, the ALJ’s inadequate RFC assessment—the Court cannot
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conclude that the ALJ’s disability determination is supported by substantial evidence. The
inadequacy of the RFC assessment is further compounded by the ALJ’s failure to expressly
consider the opinions of Plaintiff’s social worker and the ALJ’s inadequate credibility
assessment of Plaintiff’s husband. Cf. Lohr v. Comm’r of Soc. Sec., 559 F. Supp. 2d 784,
793 (E.D. Mich. 2008) (“[A] plain reading of the Regulation indicates that the failure to
consider, much less even mention [the] opinions [of two ‘other sources’] constitutes
reversible error.”). Therefore, the case should be remanded to the commissioner for further
consideration consistent with this opinion.
IV. CONCLUSION
For the reasons explained above, the Magistrate Judge’s R&R is REJECTED.
Plaintiff’s objections are SUSTAINED, Plaintiff’s motion for summary judgment is
GRANTED, and the commissioner’s motion for summary judgment is DENIED. The
decision of the commissioner is REVERSED pursuant to sentence four of 42 U.S.C. §
405(g), and this matter is REMANDED to the commissioner for further consideration in light
of this opinion.
IT IS SO ORDERED.
Dated: March 30, 2016
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
March 30, 2016, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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