Trinklein v. Commissioner of Social Security

Filing 15

ORDER Adopting in Part and Rejecting in Part 12 Report and Recommendation. Signed by District Judge Terrence G. Berg. (AChu)

Case 2:21-cv-12096-TGB-EAS ECF No. 15, PageID.706 Filed 09/15/22 Page 1 of 12

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
2:21-CV-12096-TGB-EAS

THOMAS TRINKLEIN,
Plaintiff,

ORDER ADOPTING IN PART
AND REJECTING IN PART
REPORT AND
RECOMMENDATION (ECF
NO. 12)

vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

This matter is before the Court on Magistrate Judge Elizabeth A.
Stafford’s Report and Recommendation of July 11, 2022 (ECF No. 12),
recommending that Plaintiff’s motion for summary judgment be denied
(ECF No. 9), that Defendant’s motion for summary judgment be granted
(ECF No. 10), and that the findings of the Commissioner be affirmed.
Plaintiff filed timely objections to the Report and Recommendation (ECF
No. 13), and the Commissioner filed a response (ECF. No. 14).
The Court has reviewed Magistrate Judge Stafford’s Report and
Recommendation, and Plaintiff’s objections thereto. For the reasons set
forth below, Plaintiff’s objections are SUSTAINED IN PART and
OVERRULED IN PART. Accordingly, the Report and Recommendation
is ACCEPTED IN PART and REJECTED IN PART, and this case is
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remanded to the Commissioner under 42 U.S.C. 405(g) for further
proceedings consistent with this order.
I.

BACKGROUND

Mr. Trinklein applied for disability benefits in June 2018, asserting
he became disabled on March 2, 2018 from a pinched nerve, herniated
disc, arthritis in his knees and neck, hypertension, high cholesterol, and
associated symptoms. ECF No. 12, PageID.672. He had previously
worked as a purchasing manager, shipping/receiving manager, and
safety director for an automotive industry machinery supply company.
Tr. 10/31/2019 at 5-6, ECF No. 7, PageID.88-89.
After Mr. Trinklein’s application was initially denied, he properly
applied for review. He and a vocational expert both testified at a hearing
in front of an Administrative Law Judge (“ALJ”) on October 31, 2019.
ECF No. 7, PageID.84-114. The parties participated in a supplemental
hearing on August 20, 2020, during which the ALJ heard additional
testimony from the vocational expert in response to an expert report
submitted by Mr. Trinklein and from Mr. Trinklein about his continuing
treatment. Id. at PageID.61-83.
The ALJ eventually issued a decision denying benefits on
September 25, 2020. Id. at PageID.41-60. Mr. Trinklein timely appealed
the decision to the Appeals Council, which declined to review the ALJ’s
decision. ECF No. 7, PageID.30-35. After that, Mr. Trinklein
appropriately appealed his determination to this Court. Judge Stafford
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issued a Report and Recommendation affirming the Commissioner’s
decision. ECF No. 12. Mr. Trinklein timely filed two Objections, which
the Court is now prepared to review. ECF No. 13.
II.

STANDARD OF REVIEW

Either party may serve and file written objections “[w]ithin
fourteen days after being served with a copy” of the report and
recommendation. 28 U.S.C. § 636(b)(1). Objections must cite the specific
portion of the report and recommendation to which they pertain.
This Court must conduct a de novo review (as if it were considering
the issues for the first time) of the parts of a report and recommendation
to which a party objects. See 28 U.S.C. § 636(b)(1). “A judge of the court
may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge
with instructions.” Id.
For any parts of the report and recommendation reviewed de novo,
the Court’s judicial review is nevertheless circumscribed: the Court
“must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or
has made findings of fact unsupported by substantial evidence in the
record.”1 Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir.
The ALJ’s decision stands as the Commissioner’s final decision. See 20
C.F.R. § 404.981.
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2005). Substantial evidence is not a high standard, requiring “more than
a scintilla of evidence but less than a preponderance.” Rogers v. Comm’r
of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
III. ANALYSIS
A.

Objection One
Mr. Trinklein’s first objection is that Judge Stafford improperly

affirmed the ALJ’s analysis at Step Five of the Social Security disability
analysis. Specifically, he finds fault with the assessment of the
transferability of his work skills from his previous jobs to any other work
that he might be able to perform, stating that his testimony regarding
“limited computer skills” was disregarded in finding that he could
transfer to other jobs “involving much more substantial use of a computer
during the day.” ECF No. 13, PageID.689-692.
The parties do not contest that Mr. Trinklein is limited to light work
and that his transferrable skills should be evaluated under the
framework for individuals above the age of 60, which was his age at the
time of the hearing. ECF No. 12, PageID.676. For individuals at that age
limited to light work, the Social Security Administration has indicated:
we will find that you have skills that are transferable to
skilled or semiskilled light work only if the light work is so
similar to your previous work that you would need to make
very little, if any, vocational adjustment in terms of tools,
work processes, work settings, or the industry.
20 C.F.R. § 404.1568(4). Guidance from the agency further explains that
in determining transferability of skills in this age group,
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the semiskilled or skilled job duties of their past work must
be so closely related to other jobs which they can perform that
they could be expected to perform these other identified jobs
at a high degree of proficiency with a minimal amount of job
orientation.
Social Security Ruling 82-41. The Ruling goes on to contrast skills that
are unlikely to be transferable with only minimal orientation (“where job
skills are unique to a specific work process in a particular industry or
work setting, e.g., carpenter in the construction industry, skills will not
be found to be transferable without the need for more than a minimal
vocational adjustment by way of tools, work processes, work settings, or
industry”) versus those that are likely to be transferable even for this age
group (“job skills [with] universal applicability across industry lines, e.g.,
clerical, professional, administrative, or managerial types of jobs”). Id.
The ALJ found (and Judge Stafford affirmed) that given his past
relevant work, Mr. Trinklein had the following skills: “scheduling,
customer service, report preparation, negotiating, training, record
keeping, data entry, working with numbers, math, estimating, clerical,
computer, inventory, and ordering.” ECF No. 7, PageID.54. She further
found that, based on the vocational expert’s testimony, there were at
least four jobs that exist in significant numbers in the national economy
that were compatible with Mr. Trinklein’s medical limitations and that
he could perform with “little or no vocational adjustment” and with “a
minimal amount of job orientation,” as required by the relevant Social

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Security guidance. Id. On this basis, she found that Mr. Trinklein was
not disabled at Step Five of the disability analysis.
The Court finds that the ALJ’s decision on this issue is supported
by “substantial evidence” such that it must be affirmed. The ALJ
specifically asked the vocational expert to identify jobs that Mr. Trinklein
could transfer his skills to and that would require “little to no vocational
adjustment in tools, processes, setting, or industry.” ECF No. 7,
PageID.111. There is no reason to believe that the vocational expert and
the ALJ were not considering computer usage in evaluating this
hypothetical. The ALJ went one step further and issued a written
interrogatory to the vocational expert on November 13, 2019:
More specificity is requested relative to the degree of
transferability. Are the above light and sedentary occupations
“so similar to [the claimant’s past work] that he would need
to make very little, if any, vocational adjustment in terms of
tools, work processes, work settings, or the industry”?
ECF No. 7, PageID.336. At the supplemental hearing on August 20, 2020,
the ALJ asked several follow-up questions of the vocational expert about
transferability of skills. ECF No. 7, PageID.71-76. This questioning, in
combination with the vocational expert’s responses, further supports the
conclusion that the ALJ’s assessment of whether Mr. Trinklein’s skills
could be transferred to other jobs was based on substantial evidence.
The ALJ acknowledged the testimony of Plaintiff’s expert, Dr.
Robert Ancell, regarding Plaintiff’s potential limitations and the
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difficulty that he would have transferring to jobs that required greater
computer usage. ECF No. 7, PageID.52-53. But she found that opinion
“unpersuasive” and “not consistent with the medical evidence or rules of
Social Security.” Id. The ALJ is authorized to make this type of
assessment of provided evidence, and Mr. Trinklein has not raised any
allegation of legal error in doing so.
Mr. Trinklein primarily argues that the amount of computer work
required of any of the proposed available jobs should have been more
closely scrutinized by the ALJ, because computers are key to the “tools”
and “work processes” of many jobs. But the ALJ heard testimony from
Mr. Trinklein about his use of computers at his previous job. ECF No. 7,
PageID.91 (“wrote my own Excels”); PageID.127 (“did a lot of computer
work in the afternoon,” “logged all actions and activities on computers”);
there is no evidence that she did not consider it. And he does not cite any
authority for the proposition that an ALJ must give “special
consideration” to computer usage over any other component of work
processes, such as data entry, math, or negotiating, or that somehow a
failure to specifically discuss the computer usage demands between an
individual’s past work and potentially available work in the national
economy is legal error. His prior work skills and functions are similar to
those with “universal applicability” described in SSR 82-41 and therefore
are more likely to be transferable with minimal adjustment. Objection
One is therefore overruled.
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B.

Objection Two
Mr. Trinklein’s second objection is that the R&R erred in finding no

fault with the ALJ’s determinations that his visual impairments were
nonsevere and did not need to be incorporated into his residual functional
capacity (“RFC”).
An individual’s RFC is “the most you can still do despite your
limitations.” 20 C.F.R. § 416.945(a)(1). In assessing an RFC, an ALJ
“must consider limitations and restrictions imposed by all of an
individual’s impairments, even those that are not ‘severe.’” Dyson v.
Comm’r of Soc. Sec, 786 Fed. App’x 586, 588 (6th Cir. 2019) (quoting SSR
96-8p, 1996 WL 374184, at *5 (S.S.A. July 2, 1996)). An ALJ need not
specifically discuss nonsevere impairments in the assessment, however,
so long as the analysis otherwise makes clear that she has followed the
relevant guidance in considering them. Emard v. Comm’r of Soc. Sec.,
953 F.3d 844, 852 (6th Cir. 2020).
The ALJ has significant discretion in determining how to weigh the
evidence. 42 U.S.C. § 405(g); Kalmbach v. Comm’r of Soc. Sec., 409 Fed.
App’x 852, 859 (6th Cir. 2011). Nevertheless, the ALJ’s treatment of Mr.
Trinklein’s testimony and the doctor’s report adduced to the record at the
supplemental hearing appears inadequate. See Ex. 16F, ECF No. 7,
PageID.594. In her decision, the ALJ summarizes the evidence regarding
Mr. Trinklein’s eye-related impairments and her conclusion that they are
nonsevere as follows:
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As for glaucoma, the claimant was seen on June 2, 2020
(16F9). The report indicates that the claimant complained of
difficulty reading small print with his glasses, and, when he
misses his medication, he has eye pain (Id). He also reported
that he was not compliant with his medication, as he did not
utilize the eye drops each day (Id). The severity of the
condition was noted as mild by the doctor (Id). The correction
noted for computer, reading, and distance vision were glasses
(16F12). When corrected, the claimant had 20/50 near vision
and 20/20 distance vision with both eyes (16F13). The only
recommended treatment was continued use of the eye drops
(16F15). Based on this, the condition does not appear to
significantly limit the ability of the claimant to perform basic
work functions, and is non-severe. When the claimant uses his
medication and glasses, this condition is successfully treated.
ECF No. 7, PageID.47.
There are at least two problems with this analysis.2 The first is the
ALJ’s conclusion that when Mr. Trinklein “uses his medication and
glasses, this condition is successfully treated.” Mr. Trinklein testified at
two hearings about treatments for and limitations from his eye condition:
at the first, he explained that his doctor prescribed “droplets” because he
suffered from glaucoma, which caused his “eyeballs [to] overpressure”
and made him experience what felt like “brain freeze” (ECF. No. 7,
PageID.103-04); at the second, he testified that he continued to

Mr. Trinklein also quibbles with the ALJ’s decision to focus on his
correction in both eyes with glasses being “20/50 near vision and 20/20
distance vision” while not mentioning that his right eye corrected vision
is only 20/100. But this is not a mistake so much as it is a decision to
emphasize particular evidence in the record; this alone is not a reason to
sustain the Objection.
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experience a “brain freeze headache with the eyes” when he “tried to do
… things at home on the computer” despite treatment (ECF No. 7,
PageID.69). According to Mr. Trinklein’s testimony from that second
hearing, his doctor had told him that “the[] drops aren’t working” and
that he needed to “get [his] eyes lasered to get that pressure off.” Id.
The ALJ was not required to accept Mr. Trinklein’s testimony
concerning limitations from and treatment for his eye condition, but she
discounted it without addressing the medical evidence supporting it.
Treatment notes from June 2020, for example, reflect that Mr. Trinklein
was experiencing “blurred vision” and “severe sensitivity to lights” in
addition to the ocular pain for which the eye drops were prescribed. ECF
No. 7, PageID.603. Those notes reflect that Mr. Trinklein would also need
an “LPI” (laser peripheral iridotomy) to decrease his “risk for angle
closure glaucoma” and include a referral to a specialist “for evaluation
and tx [treatment].” ECF No. 7, PageID.608.
The second problem is the ALJ’s conclusion that “the only
recommended treatment [for the eye condition] was continued use of the
eye drops.” As noted above, treatment notes reflect that Mr. Trinklein
needs laser treatment and a referral to a specialist to treat new and
ongoing symptoms. These notes suggest a progression of his disease;
previous notes reflect doctors wanted only to “monitor” it. Id. (from 2019,
“monitor. no indication for tx at this time.”); id. at PageID.466 (from 2018,
“Monitor … Educated patient on options for a consult with JMO for laser
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or possibility of starting drops … Pt wishes to start drops.”) In the ALJ’s
decision there is no indication one way or another whether she considered
this information.
Given these exclusions, and the possibility that the ALJ did not
properly consider the severity of and any work-related limitations from
Mr. Trinklein’s eye condition, the Court cannot find that ALJ’s decision
is supported by substantial evidence. See, e.g., Howard v. Comm'r of Soc.
Sec., 276 F.3d 235, 240–41 (6th Cir. 2002) (ALJ’s decision not supported
by substantial evidence when “selective inclusion” of information from
the record “does not accurately describe” claimant’s condition in RFC).
These defects are especially problematic in light of the vocational expert’s
testimony that the jobs she identified would require more than occasional
computer usage. Mr. Trinklein’s Objection Two is therefore sustained.
CONCLUSION
For all of the above reasons, Plaintiff’s Objections to Magistrate
Judge Stafford’s Report and Recommendation (ECF No. 13) are
SUSTAINED IN PART AND OVERRULED IN PART. Accordingly,
the Court ACCEPTS IN PART AND REJECTS IN PART the Report
and Recommendation (ECF No. 12). Judgment shall enter in favor of
Plaintiff against the Commissioner, REVERSING the Commissioner’s
decision that Plaintiff is not disabled and REMANDING this case to the
Commissioner under 42 U.S.C. § 405(g) for further proceedings
consistent with this opinion.
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DATED this 15th day of September, 2021.

BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge

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