Sullivan v. Commissioner of Social Security

Filing 19

Memorandum Opinion and Order: The Court REVERSES and REMANDS the Commissioner's decision. Magistrate Judge Kathleen B. Burke on 2/17/2015. (D,I)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROBERT J. SULLIVAN,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:14-cv-00344
MAGISTRATE JUDGE
KATHLEEN B. BURKE

MEMORANDUM OPINION & ORDER

Plaintiff Robert J. Sullivan (“Plaintiff” or “Sullivan”) seeks judicial review of the final
decision of Defendant Commissioner of Social Security (“Defendant” or “Commissioner”)
denying his applications for social security benefits. Doc. 1. This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate Judge pursuant to
the consent of the parties. Doc. 15. As discussed below, the ALJ erred because, while she stated
that she gave “significant weight” to the consultative examining psychologist’s opinion and
“some weight” to the state agency reviewing psychologist’s opinion, her residual functional
capacity (“RFC”) assessment was inconsistent with those opinions in part and she failed to
explain why she did not adopt certain limitations in those opinions. Accordingly, the Court
REVERSES and REMANDS the Commissioner’s decision.
I. Procedural History
Sullivan protectively filed applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) on May 26, 2011. 1 Tr. 239, 455-470, 484. He alleged a
1

The Social Security Administration explains that “protective filing date” is “The date you first contact us about
filing for benefits. It may be used to establish an earlier application date than when we receive your signed
application.” http://www.socialsecurity.gov/agency/glossary/ (last visited 2/10/2015).
1

disability onset date of September 30, 2007. Tr. 239, 457, 464, 484. Sullivan alleged disability
due to back pain and arthritis. 2 Tr. 323, 337, 353, 368, 387, 391, 402, 406, 487. After initial
denial by the state agency (Tr. 387-400), and denial upon reconsideration (Tr. 402-414), Sullivan
requested a hearing (Tr. 415-416). On July 19, 2012, Administrative Law Judge Sara Alston
(“ALJ”) conducted an administrative hearing. Tr. 255-322.
In her August 22, 2012, decision, the ALJ determined that Sullivan had not been under a
disability from September 30, 2007, through the date of the decision. Tr. 236-254. Sullivan
requested review of the ALJ’s decision by the Appeals Council. Tr. 234-235. On January 16,
2014, the Appeals Council denied Sullivan’s request for review, making the ALJ’s decision the
final decision of the Commissioner. Tr. 1-7.
II. Evidence 3
A.

Personal, educational and vocational evidence
Sullivan was born in 1967. Tr. 261, 457, 464. He is married and has three adult

children. Tr. 261. Since January 2008, Sullivan and his wife have lived with his mother in a
garage apartment. Tr. 262, 266. He completed school through the 11th grade. Tr. 273. Sullivan
last worked installing satellite dishes for Digital Dish. Tr. 267. He worked for Digital Dish from
2003 to 2007. Tr. 311, 514. Sullivan stopped working in 2007 because of lower back and neck
pain. Tr. 308. Prior to working for Digital Dish, Sullivan installed alarm systems. Tr. 290, 514.
Sullivan also served as a volunteer firefighter from 1995-2000. Tr. 291, 292, 514.
B.

Medical evidence
1. Treatment history

2

Sullivan did not initially allege disability based on a mental impairment. During his request for reconsideration, he
alleged anxiety, OCD and mood problems. Tr. 354, 408.

3

Sullivan’s sole challenge is related to the ALJ’s mental RFC finding. Thus, evidence summarized herein generally
pertains to Sullivan’s mental impairment claim.

2

Sullivan first sought mental health treatment in June 2012. Tr. 297-298, 644-648. On
June 19, 2012, a nurse practitioner, Kathleen A. Christy, APN, (“Nurse Christy”), with
Pathways, Inc. (“Pathways”), saw Sullivan and conducted an initial psychiatric evaluation. Tr.
297-298, 644-648. At the July 19, 2012, hearing, Sullivan indicated that he was scheduled to see
a therapist at Pathways the following day and a physician at Pathways the following Monday.
Tr. 297-298. As part of her initial evaluation, Nurse Christy diagnosed Sullivan with psychosis,
NOS, mood disorder, depression, and PTSD. Tr. 646. She assessed a GAF score of 40. 4 Tr.
646. Nurse Christy prescribed Celebrex and Abilify. Tr. 646. Some of Nurse Christy’s mental
status examination findings included obsessional and paranoid thought content; auditory and
visual hallucinations; depersonalization; derealization; logical but racing thought process;
depressed, angry and irritable mood; constricted affect; cooperative behavior but impulsive and
withdrawn with a loss of interest; average intelligence with no reported cognitive impairment,
including no impairment in orientation, memory, attention/concentration, judgment, or insight.
Tr. 648.
2. Opinion evidence
Treating source
On the same day that she initially evaluated Sullivan, Nurse Christy completed a Mental
Capacity Assessment wherein she rated Sullivan’s mental functional abilities in 20 areas within
the four main categories of: understanding and memory; sustained concentration and persistence;

4

GAF (Global Assessment of Functioning) considers psychological, social and occupational functioning on a
hypothetical continuum of mental health illnesses. See American Psychiatric Association: Diagnostic & Statistical
Manual of Mental Health Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric
Association, 2000 (“DSM-IV-TR”), at 34. A GAF score between 31 and 40 indicates “some impairment in reality
testing or communication (e.g., speech at times illogical, obscure, or irrelevant) or major impairment in several
areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends,
neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing
at school).” Id.

3

social interaction; and adaption. Tr. 650-652. She rated Sullivan as having marked limitations in
3 of the 20 areas. Tr. 650-652. In the remaining 17 areas, she rated Sullivan as having extreme
limitations. Tr. 650-652.
Consultative examining psychologist
On September 1, 2011, consultative examining clinical psychologist Richard C. Halas,
M.A., (“Halas”), conducted a psychological evaluation. Tr. 638-643. Halas noted that Sullivan
appeared cooperative, hesitant and anxious. Tr. 639. Halas also noted that Sullivan’s behavior
was flat, hesitant and compulsive. Tr. 640. Halas did not think Sullivan was impulsive but
indicated that Halas had significant levels of Obsessive Compulsive Disorder noting that
Sullivan reported that “things have to be in three’s. My coffee can only be put together in order
like putting the cream in first, then the coffee and then sugar” and he cannot drink it if it is not
done in that order. Tr. 640, 642. Sullivan requested three HIPAA forms at his evaluation. Tr.
642. Sullivan also reported taking showers at 7:00 p.m. stating that he will skip family events
because it might interfere with his shower time. Tr. 640. However, he denied it was a
compulsion and referred to it as a routine. Tr. 640.

Halas indicated that Sullivan showed

extremely high levels of anxiety. Tr. 640. His hands trembled and he was prone to fidgeting.
Tr. 640. Halas noted that Sullivan was guarded and suspicious. Tr. 641. Sullivan reported
feeling as if people were always looking at him, including the people in the waiting area at his
evaluation. Tr. 640, 641. Halas indicated that Sullivan was neither hallucinatory nor delusional
during the evaluation. Tr. 641. However, Sullivan did report auditory hallucinations. Tr. 641.
Halas’s assessment included diagnoses of generalized anxiety disorder with significant
features of obsessive compulsive disorder; major depression, recurrent type with psychotic

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features; and mixed personality disorder, including paranoid, borderline, dependent. Tr. 642.
Halas assessed a GAF score of 45. 5 Tr. 642.
When assessing Sullivan’s functional abilities, Halas opined: (1) Sullivan appeared to
have no deficits in understanding, remembering, and carrying out instructions; (2) Sullivan
appeared to have no deficits in maintaining attention and concentration and maintaining
persistence and pace to perform simple tasks and to perform multi-step tasks; (3) Sullivan
seemed to have severe problems in responding appropriately to supervision and co-workers in a
work setting, noting, “Symptoms of depression, anxiety, Obsessive Compulsive Disorder will
affect his ability to be affective in his ability to work with others and this includes family
members, peers, supervisors, etc.;” and (4) Sullivan seemed to have severe problems in
responding appropriately to work pressures in a work setting noting, “Symptoms of anxiety are
likely to increase dramatically under the pressures of a normal work setting.” Tr. 642-643.
State agency reviewing psychologists
On September 21, 2011, state agency reviewing psychologist Mel Zwissler, Ph.D.,
(“Zwissler”), completed a Psychiatric Review Technique (Tr. 327-328) and Mental RFC
Assessment (Tr. 331-333).
In the Psychiatric Review Technique, Zwissler opined that Sullivan had mild restrictions
in activities of daily living and moderate difficulties in social functioning and concentration,
persistence or pace. Tr. 328. Sullivan had no episodes of decompensation. Tr. 328.
In the Mental RFC Assessment, Zwissler rated Sullivan’s mental functional abilities in 20
areas within the four main categories of: understanding and memory; sustained concentration and

5

A GAF score between 41 and 50 indicates “serious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., few friends,
unable to keep a job).” DSM-IV-TR, at 34.

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persistence; social interaction; and adaption. Tr. 631-333. Zwissler found Sullivan moderately
limited in his ability to understand and remember detailed instructions; carry out detailed
instructions; maintain attention and concentration for extended periods; work in coordination
with or in proximity to others without being distracted by them; complete a normal workday or
workweek without interruption from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods; interact appropriately
with the general public; accept instructions and respond appropriately to criticism from
supervisors; get along with co-workers or peers without distracting them or exhibiting behavioral
extremes; respond appropriately to changes in the work setting; and set realistic goals or make
plans independently of others. Tr. 331-333. In the other areas, Zwissler found Sullivan not
significantly limited or that there was no evidence of limitation. Tr. 331-333. Zwissler further
explained his Mental RFC Assessment stating, Sullivan “retains the ability to perform work
activity that includes a wide range of simple, repetitive tasks involving superficial contact with
others in a setting free of strict production standards, frequent changes or fast pace. Needs some
help planning beyond the immediate day.” Tr. 333.
On reconsideration, on December 23, 2011, state agency reviewing psychologist Karen
Steiger, Ph.D., (“Steiger”), also completed a Psychiatric Review Technique (Tr. 357-359) and a
Mental RFC Assessment (Tr. 362-364) wherein she reached the same conclusions as Zwissler,
including the opinion that Sullivan “retains the ability to perform work activity that includes a
wide range of simple, repetitive tasks involving superficial contact with others in a setting free of
strict production standards, frequent changes or fast pace. Needs some help planning beyond the
immediate day.” 364.
C.

Testimonial evidence

6

1. Sullivan’s testimony
Sullivan was represented at and testified at the hearing. Tr. 261-310. He testified that a
typical day includes waking up with a stiff neck and back around 7:30 or 8:00 a.m. Tr. 262. He
makes coffee and checks e-mail on the computer. Tr. 262. Then, he usually heads out to check
on the garden, which is about 75 feet from the house. Tr. 262-263. Sullivan and his wife plant a
garden yearly. Tr. 270. Sullivan rototills the garden to get the soil ready for planting but his
wife does most of the work planting. Tr. 270-271. After checking on the garden, he works on
the computer again. Tr. 264. He has been trying to write an inspirational/spiritual book for the
past couple years and tries to write a page each day. Tr. 264. He watches television and
sometimes goes out into the garage. Tr. 265. He might change the oil in the lawnmower or mow
the grass. Tr. 269. When mowing the grass, he uses a riding lawnmower. Tr. 269. Although he
is not normally a person who takes a nap, he has been sleeping during the day. Tr. 264-265.
Over the prior two years, Sullivan noticed himself getting tired during the day. Tr. 265. He also
indicated that he had been sleeping or resting more since being prescribed Abilify and Celexa.
Tr. 287-288. He had been prescribed those medications about a month before the hearing. Tr.
287-288.
Sullivan tries to avoid people, including his neighbors. Tr. 265-266. If his neighbors are
outside, he will watch out the window and wait until they are gone before heading outside. Tr.
266. While working at Digital Dish, Sullivan’s wife accompanied him and handled the
paperwork with the customers while he completed the install. Tr. 266-267. While working as a
volunteer firefighter, Sullivan stated that he tried to perform jobs that limited his interaction with
others. Tr. 293-295. Sullivan stopped attending church in 2004. Tr. 272. He stated, “I feel that
God is calling me out of Christianity.” Tr. 272.

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Sullivan’s wife or mom usually does the shopping. Tr. 273. Sullivan can drive. Tr. 273.
He was in an accident with his mom’s car the prior year and the car was declared a total loss by
the insurance company. Tr. 273. Thus, they no longer have a car but are able to borrow his
mom’s friend’s car when needed. Tr. 273.
With respect to his mental impairments, Sullivan stated that he always knew he had some
issues but it was not until Social Security sent him to the consultative doctor and he was told he
had OCD that he realized he needed to seek mental health treatment. Tr. 297-298. One month
prior to the hearing, in June 2012, Sullivan saw Nurse Christy at Pathways for an initial
evaluation. Tr. 297-298. Before that, he had not been able to find a provider that was willing to
see him without medical insurance coverage. Tr. 298. He indicated that he was scheduled for
additional appointments at Pathways. Tr. 298. Sullivan explained that he has certain rituals that
he must perform. Tr. 300-301. For example, he has to take a shower every evening at 7:00 p.m.,
he has to take his coffee a certain way, and, before going to bed each night, his clothes have to be
set out in a specific manner. Tr. 259, 300-301.
Sullivan does not like people visiting or touching or moving his things around. Tr. 302.
When his children visit, they have a tendency to move his things and it sends him through the
roof with his temper. Tr. 302-303. Sullivan has intrusive or obsessive thoughts in his head. Tr.
302. For example, he will have conversations in his head, thinking he is talking with someone,
and he becomes upset about something he thinks the other person said. Tr. 302. On one
occasion, Sullivan became so upset with a conversation that he thought he was having that it
prompted him to email the individual that he thought he had been speaking to. Tr. 302. The
individual Sullivan emailed was confused because he was not part of the conversation. Tr. 302.

8

Sullivan proceeded to apologize by sending letters on multiple occasions and eventually the
individual wanted nothing to do with him. Tr. 303.
2. Vocational Expert’s testimony
Vocational Expert (“VE”) Nancy J. Borgeson testified at the hearing. Tr. 310-320, 445.
The VE described Sullivan’s past work. Tr. 311-312. The ALJ then posed hypothetical
questions to the VE. Tr. 312.
First, the ALJ asked the VE to assume an individual of the same age as and with the same
education and work experience as Sullivan who was limited to light work, sitting, standing and
walking 6 hours in an 8-hour day; no ropes, ladders or scaffolds; no unprotected heights;
occasional posturals like stooping, balancing, kneeling, crouching, and crawling; occasional
interaction with co-workers, supervisors, and the general public; and low stress jobs, meaning no
production quotas or tasks. Tr. 313. The VE indicated that the hypothetical involved light
unskilled work and that there would be light, unskilled jobs that such a person could perform,
including (1) electronics worker; (2) cleaner (housekeeping); and (3) mail clerk (not in post
office). 6 Tr. 313-314.
The ALJ then altered the hypothetical to add a sit/stand option at will. Tr. 314. The VE
indicated that, although there are not a lot of light jobs that allow for a sit/stand at will option,
with such a limitation, the described individual would remain able to perform the mail clerk job.
Tr. 314.
Next, the ALJ asked the VE to consider the first hypothetical (without the sit/stand option
at will) but to consider a sedentary rather than light RFC. Tr. 314-315. The VE indicated that,
with that change, the described individual could perform the job of table worker, an unskilled,

6

The VE provided regional, state and national job numbers for each of the listed jobs. Tr. 313-314.

9

sedentary job. 7 Tr. 315. The VE indicated that she was unable to provide any additional
sedentary, unskilled jobs because other jobs would involve more than occasional contact with the
public or would be production jobs. Tr. 315.
The ALJ also asked some questions regarding near acuity and the VE responded that a
limitation of frequent near acuity would not change the jobs identified. Tr. 317-318.
In response to questioning by Sullivan’s counsel, the VE indicated that, if an individual
was off task 20% or more of the workday and would likely miss 4 or more days of work per
month, the individual would not be able to sustain full-time work. Tr. 319-320.
III. Standard for Disability
Under the Act, 42 U.S.C § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy8 . . . .
42 U.S.C. § 423(d)(2)(A).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
7

The VE provided regional, state and national job numbers for the table worker job. Tr. 315.

8

“’[W]ork which exists in the national economy’ means work which exists in significant numbers either in the
region where such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A).

10

1.

If the claimant is doing substantial gainful activity, he is not disabled.

2.

If the claimant is not doing substantial gainful activity, his impairment
must be severe before he can be found to be disabled.

3.

If the claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a
listed impairment, 9 the claimant is presumed disabled without further
inquiry.

4.

If the impairment does not meet or equal a listed impairment, the ALJ
must assess the claimant’s residual functional capacity and use it to
determine if the claimant’s impairment prevents him from doing past
relevant work. If the claimant’s impairment does not prevent him from
doing his past relevant work, he is not disabled.

5.

If the claimant is unable to perform past relevant work, he is not disabled
if, based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
national economy.

20 C.F.R. §§ 404.1520, 416.920; 10 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Under this sequential analysis, the claimant has the burden of proof at Steps One through Four.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the
Commissioner at Step Five to establish whether the claimant has the RFC and vocational factors
to perform work available in the national economy. Id.
IV. The ALJ’s Decision
In her August 22, 2012, decision, the ALJ made the following findings: 11
9

The Listing of Impairments (commonly referred to as Listing or Listings) is found in 20 C.F.R. pt. 404, Subpt. P,
App. 1, and describes impairments for each of the major body systems that the Social Security Administration
considers to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age,
education, or work experience. 20 C.F.R. § 404.1525.

10

The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20
C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).
11

The ALJ’s findings are summarized.

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1.

Sullivan met the insured status requirements through December 31, 2009.
Tr. 241.

2.

Sullivan had not engaged in substantial gainful activity since September
30, 2007, the alleged onset date. Tr. 241.

3.

Sullivan had the following severe impairments: arthritis of the back,
mood disorder, generalized anxiety disorder with obsessive-compulsive
features and a personality disorder with paranoid, dependent borderline
features. Tr. 241-242. Sullivan’s eye condition was not a severe
impairment. Tr. 242.

4.

Sullivan did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments.
Tr. 242-243.

5.

Sullivan had the RFC to perform light work except he was limited to
sitting, standing and/or walking up to 6 hours in an 8-hour workday;
lifting and carrying 10 pounds frequently and 20 pounds occasionally;
restricted to occasional stooping, bending, crawling, balancing, kneeling
but no crawling, 12 or unprotected heights like ropes, ladders, or scaffolds;
occasional interaction with co-workers, supervisors and the general
public; low stress work that does not require quotas or high production;
and a restriction to frequent near acuity. Tr. 243-248.

6.

Sullivan was unable to perform any past relevant work. Tr. 248.

7.

Sullivan was born in 1967 and was 40 years old, which is defined as a
younger individual age 18-49, on the alleged disability onset date. Tr.
248.

8.

Sullivan had a limited education and was able to communicate in English.
Tr. 248.

9.

Transferability of job skills was not material to the determination of
disability. Tr. 248.

10.

Considering Sullivan’s age, education, work experience and RFC, there
were other jobs that existed in significant numbers in the national
economy that Sullivan could perform, including electronics worker,
cleaner, mail clerk, and table worker. Tr. 248-249.

12

In the RFC, the ALJ stated that Sullivan could occasionally crawl but then indicated that Sullivan could not crawl.
Tr. 243. Sullivan does not challenge what appears to be an inconsistency with respect to his ability to crawl.
12

Based on the foregoing, the ALJ determined that Sullivan had not been under a disability
from September 30, 2007, through the date of the decision. Tr. 249.
V. Parties’ Arguments
Sullivan argues that the RFC is not supported by substantial evidence because the ALJ
did not properly account for mental limitations contained in the opinions of the consultative
examining psychologist and the state agency reviewing psychologist. Doc. 17, pp. 9-11.
In response, the Commissioner argues that the ALJ fully considered and addressed the
evidence and opinions in determining the mental RFC limitations. Doc. 18, pp. 6-9. The
Commissioner also suggests that Sullivan is asking the Court to impermissibly reweigh the
evidence. Doc. 18, pp. 8-9.
VI. Law & Analysis
A reviewing 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. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “Substantial evidence is more than a scintilla of evidence but less
than a preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681
(6th Cir. 1989).
The Commissioner’s findings “as to any fact if supported by substantial evidence shall be
conclusive.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42
U.S.C. § 405(g)). Even if substantial evidence or indeed a preponderance of the evidence
supports a claimant’s position, a reviewing court cannot overturn the Commissioner’s decision

13

“so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). Accordingly, a court “may not try the
case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
Sullivan argues that the RFC is not supported by substantial evidence because the ALJ
gave “significant weight” to the opinion of consultative examining psychologist Halas but the
ALJ did not include in the RFC limitations consistent with Halas’s findings of severe problems
in relating to others and in responding appropriately to work pressures in a work setting. Doc.
17, pp. 9-10. Sullivan also argues that the ALJ gave “some weight” to the opinion of the state
agency reviewing psychologist, which included the opinion that Sullivan would need a setting
free of strict production standards, frequent changes or fast pace and Sullivan would need help
planning beyond the immediate day, but the ALJ only included in the RFC a limitation relating
to quotas or high production. Doc. 17, pp. 10-11.
The Regulations make clear that a claimant’s RFC is an issue reserved to the
Commissioner and the ALJ assesses a claimant’s RFC “based on all of the relevant evidence” of
record. 20 C.F.R. § 404.1545(a); 20 C.F.R. § 404.1546(c); see also Coldiron v. Comm’r of Soc.
Sec., 391 Fed. Appx. 435, 439 (6th Cir. 2010) (“The Social Security Act instructs that the ALJ –
not a physician – ultimately determines a Plaintiff’s RFC.). However, Social Security Ruling
96–8p states: “If the RFC assessment conflicts with an opinion from a medical source, the
adjudicator must explain why the opinion was not adopted.” Social Security Ruling 96–8p,
Assessing Residual Functional Capacity in Initial Claims, 1996 WL 374184, at *7 (July 2, 1996)
(“SSR 96-8p).
In assigning weight to the opinion evidence the ALJ stated,

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As for the opinion evidence, the undersigned assigned significant weight to the
opinion of the consultative psychological examiner, Mr. Halas. Mr. Halas
conducted a full evaluation, including a mental status evaluation and a personal
history of the claimant (Ex. 4F). A State agency psychological consultant, Karen
Steiger, Ph.D., also reviewed the record and agreed almost in whole with Mr.
Halas’ findings with the exception of finding moderate limitations in
concentration, persistence or pace (Exs. 5A, 6A). The opinion evidence, with
exception of an other source, is consistent with the residual functional capacity
finding. The undersigned afforded less weight to that other source’s (Ms.
Christy’s) opinion because of the apparent stark discrepancy with the opinions of
acceptable medical sources, the timing of the opinion (a month before the
claimant’s hearing), and absence of a treating history with this other source.
Further, the claimant’s testimony that he is unable to afford treatment is
unpersuasive in the absence of any showing that he has sought treatment with a
public or indigent health program.
Tr. 247. With respect to the opinion evidence, the ALJ also stated,
Although the claimant has not participated in any mental health treatment
program, the undersigned included limitations in the residual functional capacity
assessment that are consistent with the findings of most of the acceptable medical
and other source opinions of record. The other source opinion by Ms. Christy
provided about a month from the hearing was evaluated but given limited weight
because of the absence of treatment history and the vast contrast of that opinion
with the whole of the evidence, including the opinions of acceptable medical
sources, the claimant’s daily activities of maintaining a face book page and
writing a book, and the lack of showing that he has attempted to participate in a
public or indigent health program.
***
Because of the absence of psychological treatment, the Social Security
Administration provided a consultative psychological evaluation to determine if a
psychological impairment(s) and limitation(s) existed (Ex. 4F). The undersigned
adopted most of the consultative findings, but also gave some weight to the
reviewing psychologist, Dr. Steiger, in finding moderate limitations in
concentration, persistence or pace.
The other source opinion by Ms. Christy that the claimant had marked to extreme
limitations in the following domains: understanding and memory; sustained
concentration and persistence; social interaction; and adaptation was not
persuasive as it did not cite to any specific evidence supporting those findings,
including a psychological history. Ms. Christy’s also [sic] opinion appeared
excessive in relation to opinions from acceptable medical sources and the
claimant’s daily activities, including gardening, mowing the lawn, maintaining a
face book page and undertaking the writing of a book. There is also very limited
15

reference to psychological signs, symptoms, or limitations in other medical
records outside those created for purpose of psychological assessment. The level
of limitation described by Ms. Christy suggests a level of functioning that would
require intensive psychological treatment, which the claimant has not participated
in nor has Ms. Christy or any other psychological consultant recommended.
Tr. 247-248.
Halas’s opinion
Halas opined that Sullivan seemed to have severe problems in responding appropriately
to supervision and co-workers in a work setting noting, “Symptoms of depression, anxiety,
Obsessive Compulsive Disorder will affect his ability to be affective in his ability to work with
others and this includes family members, peers, supervisors, etc.” Tr. 643 (emphasis supplied).
Halas also opined that Sullivan seemed to have severe problems in responding appropriately to
work pressures in a work setting noting, “Symptoms of anxiety are likely to increase
dramatically under the pressures of a normal work setting.” Tr. 643 (emphasis supplied).
The ALJ provided “significant weight” to Halas’s opinion. Tr. 247. However, mental
limitations included in the RFC, i.e., “occasional interaction with co-workers, supervisors and
the general public; low stress work that does not require quotas or high production,” (Tr. 243) are
inconsistent with Halas’s finding of severe problems in Sullivan’s ability to respond
appropriately to supervision and co-workers and work pressures in a work setting and the ALJ
did not explain the reasons for the inconsistency. Rather, the ALJ incorrectly stated, “The
opinion evidence, with exception of an other source, is consistent with the residual functional
capacity finding.” Tr. 247. The ALJ also stated conclusorily that, “[a]lthough the claimant has
not participated in any mental health treatment program, the undersigned included limitations in
the residual functional capacity assessment that are consistent with the findings of most of the
acceptable medical and other source opinions of record.” Tr. 247. However, conclusory

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statements of this nature are insufficient to allow this Court to conduct a meaningful review of
the decision to determine whether it is supported by substantial evidence.
The Court’s inability to conduct a meaningful review is further hampered by the fact that
the ALJ provided differing characterizations of Halas’s opinion. In one instance, the ALJ
indicated that “Mr. Halas found no cognitive deficits or limitations in concentration, persistence
or pace. He found, however, significant problems in responding appropriately to supervision and
co-workers and work pressures in a work setting.” Tr. 245 (emphasis supplied). Later, when
discussing Halas’s opinion, the ALJ stated that “Mr. Halas opined that the claimant would have
some difficulty with responding appropriately to co-workers, supervisors and work pressures.”
Tr. 246 (emphasis supplied). In fact, Halas indicated that Sullivan seemed to have severe
problems in the area of responding appropriately to supervision and to co-workers in a work
setting. Tr. 643. Thus, the ALJ should have more clearly explained her conclusion that Halas
opined Sullivan would have only “some difficulty with responding appropriately to co-workers,
supervisors and work pressures.” Tr. 246 (emphasis supplied). Further, Halas indicated that
Sullivan’s anxiety symptoms were likely to increase dramatically under the pressures of a
normal work setting. Tr. 634 (emphasis supplied). Without further explanation, the Court is
unable to deduce the ALJ’s reasoning that led her to conclude that Halas had opined that Sullivan
had only “some difficulty with responding appropriately to . . . work pressures.” Tr. 246
(emphasis supplied).
In light of the “significant weight” provided to Halas’s opinion, which appears to contain
greater limitations than those found by the ALJ, the ALJ should have more clearly explained
how the mental RFC finding was consistent with Halas’s opinion or, in accordance with SSR 968p, the ALJ should have explained why she did not adopt Halas’s more severe limitations. See

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e.g., Moretti v. Colvin, 2014 WL 37750, * 10 (N.D. Ohio Jan. 6, 2014) (reversing where an
ALJ’s RFC conflicted with a medical source opinion in the record and the ALJ had not explained
why the opinion was not adopted); see also Thompson v. Soc. Sec. Admin., 2014 WL 356974, * 4
(N.D. Ohio Jan. 31, 2014) (same).
Steiger’s opinion
In finding moderate limitations in concentration, persistence or pace, the ALJ gave
“some weight” to Steiger’s opinion. Tr. 247. Steiger opined that Sullivan “retains the ability to
perform work activity that includes a wide range of simple, repetitive tasks involving superficial
contact with others in a setting free of strict production standards, frequent changes or fast pace.
Needs some help planning beyond the immediate day.” Tr. 364. Thus, Steiger’s opinion
included more than production limitations; her opinion also included limitations of no frequent
changes or fast pace. Tr. 364. Accordingly, in order to permit meaningful judicial review, the
ALJ should have explained how her RFC finding of low stress work accounted for these
limitations and/or why she did not adopt all the limitations pertaining to concentration,
persistence or pace found by Steiger. See Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 517 (6th
Cir. 2010) (citing Whack v. Astrue, 2008 WL 509210 at *8 (E.D. Pa. Feb. 26, 2008) for its
citations to “cases for the proposition that hypothetical restrictions of ‘simple’ or ‘low-stress’
work do not sufficiently incorporate the claimant’s medically established limitations where
claimant has moderate deficiencies in concentration, persistence or pace. 13
Since the RFC finding appears to conflict with medical opinions that the ALJ gave
“significant” and “some” weight to, the ALJ’s lack of clear articulation regarding why she did
13

Steiger also opined that Sullivan should be limited to superficial contact with others. Tr. 364. This limitation
was more restrictive than the “occasional interaction” limitation the ALJ included in the RFC. Thus, not only is
further explanation needed with respect to the ALJ’s RFC finding relative to concentration, persistence or pace,
further explanation is also required with respect to the social limitation contained in the RFC since it is also
inconsistent with Steiger’s opinion.

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not include additional or more restrictive limitations consistent with those opinions in the RFC
leaves the Court unable to conduct a meaningful review to determine whether the decision is
supported by substantial evidence. Further, the Court is unable to state with certainty that the
outcome of the disability determination would not have been different had additional
concentration, persistence or pace restrictions or more restrictive social interaction restrictions
been included in the RFC. Accordingly, reversal and remand is warranted for further
proceedings consistent with this Opinion.
VII. Conclusion
For the reasons set forth herein, the Court REVERSES and REMANDS the
Commissioner’s decision. 14

February 17, 2015
Kathleen B. Burke
United States Magistrate Judge

14

This Opinion should not be construed as requiring a determination on remand that Sullivan is in fact disabled.
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