Reed v. Commissioner of Social Security
OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:16-CV-572
HON. PAUL L. MALONEY
COMMISSIONER OF SOCIAL
This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial
review of a final decision by the Commissioner of the Social Security Administration
(Commissioner) denying Plaintiff’s claim for disability insurance benefits (DIB) and supplemental
security income (SSI) under Titles II and XVI of the Social Security Act. Section 405(g) limits the
Court to a review of the administrative record, and provides that if the Commissioner’s decision is
supported by substantial evidence, it shall be conclusive. The Commissioner has found that Plaintiff
is not disabled within the meaning of the Act.
STANDARD OF REVIEW
The scope of judicial review in a social security case is limited to determining
whether the Commissioner applied the proper legal standards in making her decision and whether
there exists in the record substantial evidence supporting that decision. See Brainard v. Sec’y of
Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may not conduct a de novo
review of the case, resolve evidentiary conflicts, or decide questions of credibility. See Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who is charged with finding the
facts relevant to an application for disability benefits, and her findings are conclusive provided they
are supported by substantial evidence. See 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla, but less than a preponderance. See
Cohen v. Sec’y of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted).
It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir.
1993). In determining the substantiality of the evidence, the Court must consider the evidence on
the record as a whole and take into account whatever evidence in the record fairly detracts from its
weight. See Richardson v. Sec’y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). The
substantial evidence standard presupposes the existence of a zone within which the decision maker
can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker
considerable latitude, and indicates that a decision supported by substantial evidence will not be
reversed simply because the evidence would have supported a contrary decision. See Bogle, 998
F.2d at 347; Mullen, 800 F.2d at 545.
Plaintiff was thirty-one years of age on the date of the ALJ’s decision. (PageID.37,
118, 131.) He previously obtained a GED and has been employed as a material handler and as an
assembler / production. (PageID.64, 68.) Plaintiff applied for benefits on December 19, 2012,
alleging that he had been disabled since January 30, 2009, due to depression and severe social
anxiety. (PageID.118, 131, 238–250.) This application was denied upon initial review on June 11,
2013, after which time Plaintiff requested a hearing before an ALJ. (PageID.149–174.) On
September 18, 2014, Plaintiff appeared with his counsel before ALJ James Prothro for an
administrative hearing at which time Plaintiff, Dr. Jeffrey Andert (a psychological expert), and a
vocational expert (VE) all testified. (PageID.58–105.) On December 12, 2014, the ALJ issued his
written decision, concluding that Plaintiff was not disabled. (PageID.37–57.) On March 22, 2016,
the Appeals Council declined to review the ALJ’s decision, making it the Commissioner’s final
decision in the matter. (PageID.27–32.) Plaintiff subsequently initiated this action under 42 U.S.C.
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).1 If the Commissioner can make a
dispositive finding at any point in the review, no further finding is required. See 20 C.F.R.
§§ 404.1520(a-f), 416.920(a). The regulations also provide that if a claimant suffers from a
nonexertional impairment as well as an exertional impairment, both are considered in determining
An individual who is working and engaging in substantial gainful activity will not be found to be
“disabled” regardless of medical findings (20 C.F.R. §§ 404.1520(b), 416.920(b));
An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R.
§§ 404.1520(c), 416.920(c));
If an individual is not working and is suffering from a severe impairment which meets the duration
requirement and which “meets or equals” a listed impairment in Appendix 1 of Subpart P of
Regulations No. 4, a finding of “disabled” will be made without consideration of vocational factors
(20 C.F.R. §§ 404.1520(d), 416.20(d));
If an individual is capable of performing work he or she has done in the past, a finding of “not
disabled” must be made (20 C.F.R. §§ 404.1520(e), 416.920(e));
If an individual’s impairment is so severe as to preclude the performance of past work, other factors
including age, education, past work experience, and residual functional capacity must be considered
to determine if other work can be performed. (20 C.F.R. §§ 404.1520(f), 416.920(f)).
the claimant’s residual functional capacity (RFC). See 20 C.F.R. §§ 404.1545, 416.945.
Plaintiff has the burden of proving the existence and severity of limitations caused
by his impairments and that he is precluded from performing past relevant work through step four.
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the
Commissioner’s burden “to identify a significant number of jobs in the economy that accommodate
the claimant’s residual functional capacity (determined at step four) and vocational profile.” Id.
ALJ Prothro determined Plaintiff’s claim failed at step five. At step one the ALJ
found that Plaintiff had not engaged in substantial gainful activity since January 30, 2009, Plaintiff’s
alleged disability onset date. (PageID.42.) At step two, the ALJ found that Plaintiff suffered from
the severe impairments of: (1) anxiety disorder NOS; (2) dysthymic disorder (mild depression); and
(3) an adjustment disorder. (PageID.43.) At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or equaled the requirements of the Listing of
Impairments found in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (PageID.43–47.) At step four, the ALJ
determined Plaintiff retained the RFC based on all the impairments to perform:
a full range of work at all exertional levels but with the following
nonexertional limitations: limited to simple work, meaning one to
two step tasks; occasional public contact and he may not perform fast
Continuing with the fourth step, the ALJ determined that Plaintiff was unable to
perform any of his past relevant work. (PageID.49.) At the fifth step, the ALJ questioned the VE
to determine whether a significant number of jobs exist in the economy that Plaintiff could perform
given his limitations. See Richardson, 735 F.2d at 964. The VE testified that Plaintiff could perform
work in the following representative jobs: garment sorter (1,150 regional and 50,000 national
positions), folder of garments (1,200 regional and 51,000 national positions), and sorter of
agricultural products (1,100 regional and 50,000 national positions). (PageID.99–104.) Based on
this record, the ALJ found that Plaintiff was capable of making a successful adjustment to work that
exists in significant numbers in the national economy. (PageID.51.)
Accordingly, the ALJ concluded that Plaintiff was not disabled from January 30,
2009, through December 12, 2014, the date of decision. (PageID.51.)
Plaintiff’s sole issue for review is the ALJ’s treatment of Dr. Andert’s opinions from
the administrative hearing and as contained in a Mental RFC worksheet.
At the hearing, Dr. Andert testified that Plaintiff suffered from the impairment of a
systemic disorder as well as from an anxiety disorder. (PageID.89–90.) He further testified that
none of these impairments would meet or equal a listing. (PageID.90.) In regards to the “paragraph
b” criteria, Dr. Andert found that Plaintiff had a moderate restriction in activities of daily living, a
marked restriction in social functioning, and moderate restrictions in concentration, persistence, and
pace. There were no episodes of decompensation. (PageID.91–92.) The doctor then summarized
his findings as contained in a mental RFC worksheet. Specifically the doctor found that Plaintiff had
limitations ranging from “not significantly limited” to marked in twenty separate categories
encompassing the areas of understanding and memory, sustained concentration and persistence,
social interaction, and adaption. (PageID.92–94, 562–563.) The ALJ then asked the doctor to offer
his opinion regarding Plaintiff’s RFC. Dr. Andert responded that:
The claimant has the intellectual capacity to understand even detailed
and complex work. However, I think you would have difficulty
performing that on a routine basis, so in my opinion, he would be
limited to work with one- to three- step tasks. [INAUDIBLE] that he
would be able to perform on a consistent basis. He would require a
low-stress environment. In other words, he would not be able to
tolerate a work environment that was fast pace, such as an assembly
line, and I don’t think he would respond – be able to handle a high
emphasis on quotas in terms of his productivity. His social
functioning, as you saw in my readings, I think is the primary area of
limitation for him, and in that regard, I think he would be precluded
from contacts with the general public. He would have only minimal
capacity to interact with coworkers and work in tandem or in groups
of, say, 10 percent of the time or less. And I think his contact with
supervisors would have to be occasional, 30 percent of the time or
less. And he may require some occasional unscheduled breaks to
recover from episodes of anxiety. It’s difficult to predict how
frequently that might be, but it could be on a weekly basis. He may
require an additional time. To recover from an episode of anxiety.
Plaintiff stated his restrictions dated back to 2009, but because the first
documentation of Plaintiff’s complaints was dated December 2012, the doctor stated he could only
opine on Plaintiff’s condition as of the December 2012 date. (PageID.96.)
Plaintiff’s counsel next questioned the expert regarding the time Plaintiff might be
Dr. Andert, you mentioned the unscheduled breaks. You said
it would be hard to quantify that. Of course, what we’re
looking for is quantification. Given the records that we have
here, can you give us any dice? I mean, we’re talking about
something that would last – breaks, is a break of five minutes,
is a break an hour? Is it – what kind of time frame are we
It is difficult to predict. We can assume that the best predictor
is behavior or episodes that are documented, and I think the
claimant developed a life style of pattern where he’ll avoid
situations that would cause anxiety, so if you were in a work
setting with the restrictions that I indicated where you just
have very minimal social contact, I think that would reduce
the likelihood of those types of episodes, so that’s – given the
history that’s described by his counselors, it certainly could
have occurred on a weekly basis, [INAUDIBLE] anxiety he
has would probably require a period of 15 to 30 minutes to
recover from that panic attack.
(PageID.96–97.) After hearing this testimony, the ALJ asked Dr. Andert to sign and submit the
completed RFC worksheet. In addition to the twenty check-mark questions, the worksheet also
asked the doctor to elaborate on the preceding capacities and to explain his conclusions in narrative
form, as well as to include any information which clarified Plaintiff’s limitation or function.
(PageID.564.) In that section, Dr. Andert wrote that Plaintiff’s combined impairments restricted him
to one to three step tasks. Social functioning was Plaintiff’s primary area of limitation, and the
doctor indicated that Plaintiff was precluded from general public contact, and that contact with coworkers and supervisors was limited to only ten percent of the time or less. (PageID.564.)
After hearing this testimony and receiving the completed worksheet, the ALJ issued
his written decision. In it, the ALJ discussed Dr. Andert’s opinions regarding Plaintiff’s RFC at
three separate points in his decision. First, in finding that Plaintiff did not meet or equal a listing,
the ALJ noted that:
During the hearing the testimony from Dr. Andert was not entire clear
during one portion. Dr. Andert stated that the claimant could benefit
from “extra breaks” to recover from panic attacks. Dr. Andert was
asked to expound on the term extra breaks and he did not make that
section entirely clear. Specifically, he could not quantify the amount
of breaks. That factored into the information at the end of the hearing
as the vocational expert took this to mean that the breaks would not
enable an individual to work at any occupation. However, at exhibit
14F, the written summary from Dr. Andert settled the issue of extra
breaks and the recovery from panic attacks. At page 3 of exhibit 14F,
Dr. Andert mentions everything that is supported based upon his
expert opinion. The reference to extra breaks, or number of breaks,
or the period of time this individual would miss at the job are settled
based upon exhibit 14F. The undersigned does approximate the
medical expert’s testimony regarding simple work and limited public
contacts. Even with these stringent classification of the restrictions
the vocational expert ultimately provided three different jobs and
occupations that are within the residual functional capacity adopted
in this matter.
(PageID.44.) Later in his step three discussion, the ALJ stated:
Dr. Andert offered testimony at the hearing and he clarified his
findings at exhibit 14F . . . . As is mentioned elsewhere in this order,
the testimony from Dr. Andert at the hearing was somewhat
incomplete as he could not immediately quantify the issue of extra
breaks. Dr. Andert did clearly explain that no listing[s] were met or
equaled. When Dr. Andert could not immediately provide a number
or percentage for the extra breaks, the vocational expert grasped tat
that and moved forth to testify how no jobs existed. The undersigned
has now clarified this discrepancy by summarizing exhibit 14F and
assigning great weight to Dr. Andert’s written explanation. The
information at exhibit 14F is due much more weight than the course
of events at the hearing due to that sequence. A proper view of the
evidence is that the anxiety, and panic attacks, can allow for a type of
work that has limited social contact. That is of course essentially the
same as the restriction to no-fast paced work. The RFC from the
medical expert at the hearing is assigned less weight and the
information at exhibit 14F, as well as that from the DDS source, is
assigned greater weight because of that confusion.
(PageID.45.) Finally, at step four, the ALJ repeated his assertion that:
Dr. Andert’s written summary at exhibit 14F is assigned greater
weight than Dr. Andert’s statements made during the hearing due to
a lack of clarity on the issue of how many extra breaks or breaks this
claimant could require. To reiterate a point made earlier in this order,
the detailed RFC from Dr. Andert mentioned how this claimant “may
need” to take extra breaks in order to recuperate from the panic
attacks. The claimant’s attorney was fixated on this aspect of the case
and asked Dr. Andert to quantify the breaks and Dr. Andert
mentioned that it was hard for him to estimate. When this was
ultimately presented to the vocational expert by the undersigned in
one of the hypothetical examples, the vocational expert quickly stated
that no jobs existed for a person with this restriction. The vocational
expert clearly would have required a quantification of the number or
level of extra breaks and that was not something that Dr. Andert was
able to summarize expeditiously.
(PageID.48.)2 Plaintiff argues that the ALJ’s RFC determination is faulty because the ALJ’s analysis
of Dr. Andert’s opinions, specifically as it relates to the time he would be off task and his ability to
interact with coworkers and supervisors, is unsupported by substantial evidence. The Commissioner
argues there is no error here because Dr. Andert’s testimony regarding the time Plaintiff would be
off task was speculative, and the doctor’s final opinion did not contain any restrictions for the time
Plaintiff would be off task. While the Court agrees Dr. Andert’s testimony was speculative, the
Court concurs with Plaintiff that this matter must be remanded.
A claimant’s RFC represents the “most [a claimant] can still do despite [the
claimant’s] limitations.” Sullivan v. Comm’r of Soc. Sec., 595 F. App’x 502, 505 (6th Cir. 2014.);
see also SSR 96-8p, 1996 WL 374184 at *1 (July 2, 1996) (stating a claimant’s RFC represents his
ability to perform “work-related physical and mental activities in a work setting on a regulation and
continuing basis,” defined as “8 hours a day, for 5 days a week, or an equivalent work schedule”).
The questioning of the VE on Dr. Andert’s opinion regarding Plaintiff’s RFC appears as follows:
And then next, we have the RFC that Dr. Andert gave, so this would be
based on – a new [hypothetical] based on that. So the hypothetical person,
he would be limited to one- to three- step tasks in a low-stress
environment, not able to do fast-paced work, no production quotas,
having no contact with the general public, normal contact with coworkers,
and then – with supervisors, up to 33 percent of the day. Maybe the extra
breaks because of anxiety issues. So those are the facts. Could this
person do any o the past work?
Could this person do other work in the economy?
And this – I should add, this person would have no exertional limitations.
There’s no change.
Because Dr. Andert was not a treating physician, the ALJ was not “under any special obligation to
defer to [his] opinion[s] or to explain why he elected not to defer to [them].” Karger v. Comm’r of
Soc. Sec., 414 F. App’x 739, 744 (6th Cir. 2011); see Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514
(6th Cir. 2010); see also Perry ex rel. G.D. v. Comm’r of Soc. Sec., 501 F. App’x 425, 426 (6th Cir.
2012). Rather the weight to be given the opinion is evaluated under the factors set forth in 20 C.F.R.
§§ 404.1527(c) and 416.927(c). The ALJ is responsible for weighing conflicting medical opinions,
not the court. See Buxton v. Halter, 246 F.3d 762, 775 (6th Cir. 2001); see also Reynolds v. Comm’r
of Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 2011) (“This court reviews the entire administrative
record, but does not reconsider facts, re-weigh the evidence, resolve conflicts in evidence, decide
questions of credibility, or substitute its judgment for that of the ALJ.”); accord White v. Comm’r
of Soc. Sec., 572 F.3d at 284.
As noted above, the ALJ found that Dr. Andert’s opinion was not entirely clear, and
instead depended upon the opinion contained in the completed worksheet. According to the ALJ,
this latter opinion “mentions everything that is supported based upon his expert opinion.” In
essence, the ALJ found that because the RFC worksheet did not contain any mention of the time
Plaintiff would be off task, this “clarified” the doctor’s speculative testimony. The Court disagrees.
The completed worksheet consists of only twenty check-box questions. Notably, no question asked
whether Plaintiff would require unscheduled breaks or otherwise be off task. It can hardly be said,
therefore, that the time Plaintiff would be off task was “settled” based upon exhibit 14F, nor that it
mentioned everything that was supported by the doctor’s opinion. To the extent the ALJ depends
on the fact that a time being off task was not included in the narrative at the end of the worksheet,
such a determination is also not supported by the record. The worksheet’s final question asked the
doctor to elaborate on the preceding capacities. Accordingly, here too, there is no indication that
this narrative opinion contained everything that was supported based upon the expert’s opinion.
The ALJ erred in one additional respect. The ALJ found that the evidence indicated
Plaintiff was able to perform work requiring limited social contact, and then proceeded to find that
this was “essentially” the same as a restriction for no-fast paced work. This appears to be an
incorrect statement. The ALJ does not explain, nor is there supporting case law, how a restriction
for social contact is “essentially the same” as a restriction for speed paced work. Indeed, if this were
so, the ALJ’s RFC determination allowing for no fast-paced work, after finding Plaintiff could only
have occasional public contact, would have been an unnecessary duplicate finding.
With this in mind, the Court finds a further error, also identified by Plaintiff and
unaddressed by the Commissioner. The ALJ gave great weight to Dr. Andert’s completed RFC
worksheet. On it, Dr. Andert stated Plaintiff was precluded from general public contact, and that
contact with co-workers and supervisors was limited to only ten percent of the time or less.
(PageID.564.) The ALJ did not explain why he did not adopt this portion of the opinion despite
giving it great weight.
In short, an ALJ “must articulate, at some minimum level, his analysis of the evidence
to allow the appellate court to trace the path of his reasoning.” Diaz v. Chater, 55 F.3d 300, 307 (7th
Cir. 1995). On this record, the Court is unable to trace the path of the ALJ’s reasoning.
Accordingly, this matter will be reversed and remanded pursuant to sentence four of 42 U.S.C. §
Finally, Plaintiff asks for an award of benefits. While the Court finds that the ALJ’s
decision fails to comply with the relevant legal standards, Plaintiff can be awarded benefits only if
“all essential factual issues have been resolved” and “the record adequately establishes [his]
entitlement to benefits.” Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir.
1994); see also Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 644 (6th Cir. 2013). This latter
requirement is satisfied “where the proof of disability is overwhelming or where proof of disability
is strong and evidence to the contrary is lacking.” Faucher, 17 F.3d at 176; see also Brooks, 531 F.
App’x at 644. Evaluation of Plaintiff’s claim requires the resolution of certain factual disputes
which this Court is neither competent nor authorized to undertake in the first instance. Moreover,
there does not exist compelling evidence that Plaintiff is disabled. Accordingly, this matter must be
remanded for further administrative action.
For the reasons articulated herein, the Court concludes that the ALJ’s decision is not
supported by substantial evidence. Accordingly, the Commissioner’s decision is VACATED and
the matter REMANDED for further factual findings including, but not necessarily limited to, further
evaluation of Plaintiff’s RFC and Dr. Andert’s opinion.
A separate judgment shall issue.
Dated: April 28, 2017
/s/ Paul L. Maloney
PAUL L. MALONEY
United States District Judge
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