Little v. Commissioner of Social Security

Filing 22

Memorandum of Opinion and Order For the reasons set forth herein, the decision of the Commissioner of Social Security is reversed and the case remanded for further proceedings consistent with this order. Judge Benita Y. Pearson on 3/4/2016. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
PATRICIA ANN LITTLE,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:14cv2792

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER

An Administrative Law Judge (“ALJ”) denied Plaintiff Patricia Ann Little’s claim for
supplemental security income (“SSI”) benefits after a hearing held on April 1, 2013 in the abovecaptioned case. That decision became the final determination of the Commissioner of Social
Security when the Appeals Council denied the request to review the ALJ’s decision. The
claimant sought judicial review of the Commissioner’s decision, and the Court referred the case
to Magistrate Judge James R. Knepp, II for preparation of a report and recommendation pursuant
to 28 U.S.C. § 636 and Local Rule 72.2(b)(1). After both parties filed briefs, the magistrate
judge submitted a Report and Recommendation reasoning that the Commissioner’s decision that
Plaintiff is not disabled should be affirmed. See ECF No.16. Plaintiff filed Objections to the
Report and Recommendation. ECF No. 17. Defendant filed a Response. ECF No. 18. For the
reasons that follow, the Court reverses the decision of the Commissioner of Social Security and
remands the case to the Commissioner for further proceedings and a new decision.

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I.
When a magistrate judge submits a Report and Recommendation, the Court is required to
conduct a de novo review of the portions of the Report and Recommendation to which an
appropriate objection has been made. 28 U.S.C. § 636(b). Objections to the Report and
Recommendation must be specific, not general, in order to focus the court’s attention upon
contentious issues. Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir.
1991). The primary issue then becomes whether substantial evidence supports the
Commissioner’s decision. The Court’s review of the Commissioner’s decision is limited to
determining whether substantial evidence, viewing the record as a whole, supports the findings of
the ALJ. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978); Bartyzel v. Commr of Soc.
Sec., 74 F. App’x 515, 522–23 (6th Cir. 2003). Substantial evidence is more than a mere scintilla
of evidence, but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)); Besaw v. Sec’y of Health and Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992) (per
curiam).
If substantial evidence supports the Commissioner’s decision, a reviewing court must
affirm the decision even if it would decide the matter differently. Cutlip v. Secretary of Health
and Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Kinsella v. Schweiker,
708 F.2d 1058, 1059 (6th Cir. 1983) (per curiam)). Moreover, the decision must be affirmed
even if substantial evidence would also support the opposite conclusion. Mullen v. Bowen, 800

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F.2d 535, 545 (6th Cir. 1986) (en banc). This “standard allows considerable latitude to
administrative decision makers. It presupposes that there is a zone of choice within which the
decisionmakers can go either way, without interference by the courts. An administrative decision
is not subject to reversal merely because substantial evidence would have supported an opposite
decision.” Id. (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)). In determining,
however, whether substantial evidence supports the ALJ’s findings in the instant matter, the
court must examine the record as a whole and take into account what fairly detracts from its
weight. Wyatt v. Sec’y of Health and Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). The
court must also consider whether the Commissioner employed the proper legal standards. Queen
City Home Health Care Co. v. Sullivan, 978 F.2d 236, 243 (6th Cir. 1992).
To establish disability under the Social Security Act, a claimant must show that she is
unable to engage in substantial activity due to the existence of “a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months.” See 42 U.S.C. §§
423(d)(1)(A), 1382c(a)(3)(A). The claimant’s impairment must prevent her from doing her
previous work, as well as any other work existing in significant numbers in the national
economy. 42 U.S.C. § 423(d)(2)(A).
In order for the Commissioner to find that a plaintiff suffers from a disability for which
she should receive benefits, the plaintiff must be unable to engage in any substantial gainful
activity due to the existence of a “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

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period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); Colvin v. Barnhart, 475 F.3d 727,
730 (6th Cir. 2007). Under 42 U.S.C. § 1381, disabled individuals who meet certain income and
resources requirements are entitled to SSI benefits. 20 C.F.R. §§ 416.1100 and 416.1201.
II.
Plaintiff lodged the following Objections:
I. The Magistrate Judge incorrectly determined that the ALJ properly evaluated
the claimant’s fibromyalgia and credibility.
II. The Magistrate Judge incorrectly determined that the ALJ’s RFC was based on
substantial evidence.
III. The Magistrate Judge incorrectly determined that the ALJ properly evaluated
other source opinions.
ECF No. 17. To resolve these Objections, the Court has reviewed the Report and
Recommendation (ECF No.16) of the magistrate judge de novo as required, and Defendant’s
Response to Plaintiff’s Objections. ECF No. 18. Plaintiff’s second objection is dispositive of
this case.
Plaintiff objects to the magistrate judge’s conclusion that substantial evidence supported
the residual functional capacity (“RFC”) determination that did not include any limitations for
Plaintiff’s incontinence. ECF No. 17 at PageID # 809–10. Plaintiff argues that the state agency
reviewers did not discuss the issue of incontinence and, therefore, cannot serve as substantial
evidence. Id. Plaintiff also argues that the state reviewers did not consider other evidence that
specifically addresses the severity of her incontinence. Id. at PageID # 810. Defendant retorts
that the ALJ’s RFC determination was supported by substantial evidence. ECF No. 18 at PageID
# 816.
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“Even if supported by substantial evidence, however, a decision of the Commissioner will
not be upheld where the SSA fails to follow its own regulations and where that error prejudices a
claimant on the merits or deprives the claimant of a substantial right.” Bowen v. Comm’r of Soc.
Sec., 478 F.3d 742, 746 (6th Cir. 2007). Relevant to the instant case, Social Security Ruling
96-8P provides:
In assessing RFC, the adjudicator must consider limitations and restrictions
imposed by all of an individual’s impairments, even those that are not “severe.”
While a “not severe” impairment(s) standing alone may not significantly limit an
individual’s ability to do basic work activities, it may—when considered with
limitations or restrictions due to other impairments—be critical to the outcome of
a claim. For example, in combination with limitations imposed by an individual’s
other impairments, the limitations due to such a not severe impairment may
prevent an individual from performing past relevant work or may narrow the
range of other work that the individual may still be able to do.
Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8P (S.S.A.
July 2, 1996). This, like other social security rulings adopted by the Social Security
Administration, is “binding on all components of the Social Security Administration.” 20 C.F.R.
§ 402.35(b)(1) (2004).
Although the ALJ mentioned Plaintiff’s incontinence and found it “not severe” (ECF No.
8 at PageID # 53) and later acknowledged that Plaintiff’s incontinence was a medically
determinable impairment that could cause the alleged symptoms (ECF No. 8 at PageID # 55), the
ALJ did not discuss incontinence at all when evaluating the intensity, persistence, and limiting
effect of her other impairments. ECF No. 8 at PageID # 55–59. He totally omitted any
evaluation of Plaintiff’s impairment due to incontinence from his determination of Plaintiff’s
RFC. Per SSR 96-8P, Plaintiff’s incontinence, considered on its own, may not significantly limit

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her ability to perform basic work activities; however, it may further limit her functional capacity
in conjunction with her other impairments—especially her fibromyalgia, which the ALJ found to
be a severe impairment. ECF No. 8 at PageID # 52. By omitting any discussion of Plaintiff’s
incontinence from his RFC determination, the ALJ does not appear to have accurately assessed
the full extent of Plaintiff’s limitations on her RFC.
The prejudice caused by the ALJ’s omission is not a harmless error. “[A] procedural
error is not made harmless simply because [the aggrieved party] appears to have had little chance
of success on the merits anyway.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546 (6th Cir.
2004) (internal quotation marks omitted). “To hold otherwise, and to recognize substantial
evidence as a defense to non-compliance with [the Social Security Regulations], would afford the
Commissioner the ability the violate the regulation with impunity and render the protections
promised therein illusory.” Id. The ALJ’s RFC determination omitted, without explanation, an
impairment that would have placed additional limitations on Plaintiff’s ability to work. This, in
turn, erroneously increased the potential number of other jobs in the national economy that
Plaintiff could have performed. Therefore, inasmuch as the ALJ failed to consider limitations
imposed by one of Plaintiff’s impairments while assessing her RFC, she has been prejudiced on
the merits of her claim. Bowen, 478 F.3d at 746. Remand is required to allow the ALJ to
reassess to what extent Plaintiff’s residual functional capacity is limited by her incontinence.
III.
Plaintiff’s second objection to the magistrate judge’s report and recommendation is
sustained, and the Court rejects the finding that the ALJ’s RFC determination is supported by

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substantial evidence. Accordingly, the decision of the Commissioner of Social Security is
reversed and the case remanded for further proceedings consistent with this order.

IT IS SO ORDERED.

March 4, 2016
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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