McClellan v. Commissioner of Social Security Administration

Filing 17

Memorandum Opinion and Order. The Commissioner's final decision is reversed and remanded for further proceedings. Magistrate Judge Nancy A. Vecchiarelli on 4/1/2016. (G,W)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOYCE W. MCCLELLAN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

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CASE NO. 1:15-CV-00723

MAGISTRATE JUDGE
VECCHIARELLI

MEMORANDUM OPINION AND
ORDER

Defendant.
Plaintiff, Joyce W. McClellan (“Plaintiff”), challenges the final decision of
Defendant, Carolyn W. Colvin, Acting Commissioner of Social Security
(“Commissioner”), denying her application for Supplemental Security Income (“SSI”)
under Titles II and XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. (“Act”). This
case is before the undersigned United States Magistrate Judge pursuant to the consent
of the parties entered under the authority of 28 U.S.C. § 636(c)(2). For the reasons set
forth below, the Commissioner’s final decision is REVERSED and REMANDED for
further proceedings.
I.

PROCEDURAL HISTORY

On December 13, 2011, Plaintiff filed her applications for SSI, alleging a
disability onset date of October 1, 2008. (Transcript (“Tr.”) 11.) The claims were
denied initially and upon reconsideration, and Plaintiff requested a hearing before an
administrative law judge (“ALJ”). (Id.) On August 9, 2013, an ALJ held Plaintiff’s
hearing. (Id.) Plaintiff participated in the hearing, was represented by counsel, and
testified. (Id.) A vocational expert (“VE”) also participated and testified. (Id.) On

December 23, 2013, the ALJ found Plaintiff not disabled. (Tr. 21.) On February 16,
2015, the Appeals Council declined to review the ALJ’s decision, and the ALJ’s decision
became the Commissioner’s final decision. (Tr. 1.)
On April 14, 2015, Plaintiff filed her complaint challenging the Commissioner’s
final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc.
Nos. 14, 16.)
Plaintiff asserts the following assignments of error: (1) The ALJ erred in her
assessment of Plaintiff’s residual functional capacity; and (2) the ALJ erred by failing to
grant appropriate weight to the opinions of the treating physicians. (Doc. No. 14.)
II.
A.

EVIDENCE1

Personal and Vocational Evidence
Plaintiff was born in October 1963 and was 45-years-old on the alleged disability

onset date. (Tr. 19.) She had a limited education and was able to communicate in
English. (Id.) She had past relevant work as a cleaner. (Id.)
B.

Hearing Testimony
1.

Plaintiff’s Hearing Testimony

At her August 9, 2013 hearing, McClellan testified as follows:
•

She lives with her brother and 14 year-old son. She has a driver’s license,
but does not drive much. (Tr. 30.) She relies on her mother to drive her
places. (Tr. 36-37.) She does not remember if she had to take a written
test to obtain her license. (Tr. 37.)

•

She has a ninth grade education. (Tr. 30-31.) She tried to obtain her
GED but suffers from Attention Deficit Hyperactivity Disorder (“ADHD”)

1

As Plaintiff’s assignments of error present only limited issues for review, the Court
discusses the relevant medical evidence in its analysis below.

2

and reads only at a third grade level. (Tr. 31.) She was in special classes
her entire life. She cannot read a menu or a newspaper headline, and the
names of individuals in her cell phone are abbreviated to initials. (Tr. 3233.)
•

She used to smoke illegal substances years ago, and did not drink
alcohol. (Tr. 33.)

•

She purchases primarily pre-prepared meals. She does not wash dishes
or go grocery shopping, but helps her son with the laundry. (Tr. 33-34.)
She is able to perform personal hygiene without difficulty. She has no
hobbies. (Tr. 34.)

•

Her medication makes her groggy. (Tr. 34-35.) She takes seventeen (17)
different medications, including Percocet for pain. (Tr. 40.) The side
effects include nausea, constipation, bloating, and weight gain. (Tr. 41.)
She has attempted physical therapy, but it causes her too much pain. (Tr.
35.) She has also been prescribed a TENS unit, but her pain is
unremitting. (Tr. 41.)

•

She gets up at 5 a.m. in the morning to see her son off to school. (Tr. 35.)
She has trouble sleeping due to pain and has a CPAP machine to help
with her sleep apnea. (Tr. 36.) Despite taking sleeping pills and using the
CPAP machine, she still wakes up at night. (Tr. 47-48.)

•

She receives Toradol injections for her pain every two weeks. (Tr. 36, 4849.) She receives nerve blocks every three months. In May of 2012, she
underwent a rhizotomy which involves burning the nerves. (Tr. 49.)

•

She received social security as a child. (Tr. 37.)

•

She worked part-time as a cleaner for four or five years, but was injured at
work when a dumpster door hit her in the back. (Tr. 37-38.) Her last job
was with the Salvation Army in 2008. (Tr. 37.)

•

She has sharp pain in her legs, she wakes up with bruises of unknown
origin on her legs, and the toes on her right foot separated. She has
difficulty walking and wobbles when she does so. (Tr. 39.)

•

She had been seeing a counselor, therapist, or psychiatrist until he quit.
(Tr. 42-43.)

•

She was unsure how much weight she could lift or carry. She can stand
for 30 to 40 minutes before needing to sit down. (Tr. 44.)
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•

She is left-handed, drop things, and can sometimes open jars or bottles.
She can eat with utensils. (Tr. 45.) She could bend slowly and crawl
slowly. (Tr. 46.)

•

She has no problems being around people. She is forgetful and mixes up
her medical appointments. (Tr. 46.) She uses two pill boxes to keep track
of her medications. (Tr. 47.)

•

Five of her seven siblings have “died from some kind of leg pain, heart
attack.” (Tr. 39.)

•

She has been diagnosed with degenerative disk disease and spondylosis.
(Tr. 51.)

2.

Vocational Expert’s Hearing Testimony

The VE classified Plaintiff’s past work as a cleaner, Dictionary of Occupational
Titles (“DOT”) No. 323.687-018, light exertional, with an SVP of 2. (Tr. 54.) The job did
not result in any transferable skills. (Id.) The ALJ posed the following hypothetical
question to the VE:
Assuming we had a hypothetical person, who could lift and carry 20
pounds occasionally, 10 pounds frequently, this person could -- this
person is going to be able to stand and walk for six hours and sit for six
with normal breaks. This person would occasionally climb stairs and
ramps, bend, balance, stoop, kneel and crawl.
This person could frequently reach in all directions and could frequently
handle, finger and feel. This person would avoid hazardous conditions
and would perform simple, routine tasks with simple, short instructions;
make simple decision [sic], have few workplace changes. This person
should not be required to -- as a function of the job, they wouldn't be
required to prepare reports.
They would not be required to have to read instructions, so that if they
were learning something, they would learn it by demonstration.
(Tr. 54-55.)
The VE testified that such an individual would not be able to perform Plaintiff’s
past relevant work, because of the limitation to only occasional bending. (Tr. 55.)
4

However, the VE identified the following jobs that the hypothetical individual could
perform: assembler, small products – DOT No. 706.684-022, light exertional level,
unskilled with SVP of 2 (4,000 jobs statewide and 600,000 nationally); inspection
worker – DOT No. 559.687- 074, light, unskilled with SVP of 2 (3,000 jobs statewide
and 300,000 nationally); and, bench assembler – DOT No. 754.648-018, light, unskilled
(2,000 jobs statewide and 450,000 nationally).2 (Tr. 55-56.)
When asked by the ALJ, the VE testified that an individual who missed work at
least three times a month would be unable to maintain competitive employment over
time. (Tr. 56-57.) Similarly, the VE testified that an individual who requires a 15-minute
break every two hours could perform the jobs identified, but would have difficulty
maintaining competitive employment over time. (Tr. 57-58.)
The VE affirmed that her testimony was consistent with the DOT, but noted that
her testimony regarding absenteeism was not based on the DOT but on her experience.
(Tr. 58.)
Finally, the ALJ inquired how the VE would categorize an individual who could
perform the lifting/carrying requirements of light work but was limited to only two hours
of standing/walking in an eight-hour workday but could sit for six. (Tr. 58.) The VE
stated that it would be considered sedentary. (Tr. 59.)
In response to a question from Plaintiff’s counsel, the VE testified that if the
person in the first hypothetical “needs a sit/stand at-will option, and that when they’re

2

The VE retracted her earlier testimony that the hypothetical person could perform the
job of a dish washer. (Tr. 56.) She also identified sorter as a sedentary position that
the hypothetical individual could perform. (Id.)

5

standing, they [need to use a] cane,” such a person would be competitively
unemployable. (Tr. 59.) The VE noted that such a requirement would place the
individual in the sedentary category. (Id.)
III.

STANDARD FOR DISABILITY

A claimant is entitled to receive benefits under the Social Security Act when she
establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered
disabled when she cannot perform “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.” 20 C.F.R. § 416.905(a).
The Commissioner reaches a determination as to whether a claimant is disabled
by way of a five-stage process. 20 C.F.R. § 416.920(a)(4); Abbott v. Sullivan, 905 F.2d
918, 923 (6th Cir. 1990). First, the claimant must demonstrate that he is not currently
engaged in “substantial gainful activity” at the time he seeks disability benefits. 20
C.F.R. § 416.920(b). Second, the claimant must show that he suffers from a “severe
impairment” in order to warrant a finding of disability. 20 C.F.R. § 416.920(c). A
“severe impairment” is one that “significantly limits . . . physical or mental ability to do
basic work activities.” Abbot, 905 F.2d at 923. Third, if the claimant is not performing
substantial gainful activity, has a severe impairment that is expected to last for at least
twelve months, and the impairment meets a listed impairment, the claimant is
presumed to be disabled regardless of age, education or work experience. 20 C.F.R. §

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416.920(d). Fourth, if the claimant’s impairment does not prevent her from doing her
past relevant work, the claimant is not disabled. 20 C.F.R. § 416.920(e)-(f). For the
fifth and final step, even if the claimant’s impairment does prevent her from doing her
past relevant work, if other work exists in the national economy that the claimant can
perform, the claimant is not disabled. 20 C.F.R. § 416.920(g).
IV.

SUMMARY OF COMMISSIONER’S DECISION

The ALJ made the following findings of fact and conclusions of law:
1.

The claimant has not engaged in substantial gainful activity since
December 13, 2011, the application date (20 CFR 416.971 et seq .)
(Exhibits 2D, 4D, SD, 3E, and 1F and Hearing Testimony).

2.

The claimant has the following severe impairments: Degenerative
disc disease, obesity, major depression, and anxiety (20 CFR
416.920(c).

3.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 416.920(d), 416.925 and 416.926).

4.

After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 416.967(b) and meaning
that the claimant can lift/carry 20 pounds occasionally, 10 pounds
frequently, stand/walk 6 hours, and sit for 6 hours with normal
breaks, occasionally climb stairs and ramps, bend, balance, stoop,
kneel, and crawl, frequently reach in all directions, frequently
handle, finger, and feel, would avoid all hazardous conditions,
perform simple, routine tasks with simple, short instructions, make
simple decisions, have few work place changes, and should not be
required as functions of the job to prepare reports or read
instructions, as to learn a task she would learn it by demonstration.

5.

The claimant is unable to perform any past relevant work (20 CFR
416.965).

6.

The claimant was born on October 21, 1963 and was 48 years old,
which is defined as a younger individual age 18-49, on the date the
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application was filed. The claimant subsequently changed age
category to closely approaching advanced age (20 CFR 416.963).
7.

The claimant has a limited education and is able to communicate in
English (20 CFR 416.964).

8.

Transferability of job skills is not an issue in this case because the
claimant’s past relevant work is unskilled (20 CFR 416.968).

9.

Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 416.969 and 416.969(a)).

10.

The claimant has not been under a disability, as defined in the
Social Security Act, since December 13, 2011, the date the
application was filed (20 CFR 416.920(g)).

(Tr. 13-20.)
V.
A.

LAW & ANALYSIS

Standard of Review

Judicial review of the Commissioner’s decision is limited to determining whether
the Commissioner's decision is supported by substantial evidence and was made
pursuant to proper legal standards. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512
(6th Cir. 2010). Review must be based on the record as a whole. Heston v. Comm’r of
Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may look into any evidence in
the record to determine if the ALJ’s decision is supported by substantial evidence,
regardless of whether it has actually been cited by the ALJ. Id. However, the court
does not review the evidence de novo, make credibility determinations, or weigh the
evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir.
1989).

8

The Commissioner’s conclusions must be affirmed absent a determination that
the ALJ failed to apply the correct legal standards or made findings of fact unsupported
by substantial evidence in the record. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281
(6th Cir. 2009). 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. Brainard, 889 F.2d at 681. A decision supported by
substantial evidence will not be overturned even though substantial evidence supports
the opposite conclusion. Ealy, 594 F.3d at 512.
B.

Plaintiff’s Assignments of Error
1. Treating Physician Rule

In her second assignment of error, Plaintiff avers that the ALJ erred in her
evaluation of the weight assigned to two of her treating physicians – Rodney B.
Delaney, Ph. D., and Christopher Gillespie, M.D. (Doc. No. 14 at 15.) T he
Commissioner argues that the ALJ set forth good reasons for rejecting these opinions.
(Doc. No. 16 at pp. 14-21.)
“An ALJ must give the opinion of a treating source controlling weight if he finds
the opinion ‘well-supported by medically acceptable clinical and laboratory diagnostic
techniques’ and ‘not inconsistent with the other substantial evidence in the case
record.’ ” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (quoting 20
C.F.R. § 404.1527(d)(2)) (internal quotes omitted). If an ALJ decides to give a treating
source’s opinion less than controlling weight, he must give “good reasons” for doing so
that are sufficiently specific to make clear to any subsequent reviewers the weight given

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to the treating physician’s opinion and the reasons for that weight. See Wilson, 378
F.3d at 544 (quoting S.S.R. 96-2p, 1996 WL 374188, at *5 (S.S.A.)). This “clear
elaboration requirement” is “imposed explicitly by the regulations,” Bowie v. Comm’r of
Soc. Sec., 539 F.3d 395, 400 (6th Cir. 2008), and its purpose is to “let claimants
understand the disposition of their cases” and to allow for “meaningful review” of the
ALJ’s decision, Wilson, 378 F.3d at 544 (internal quotation marks omitted). Where an
ALJ fails to explain his reasons for assigning a treating physician’s opinion less than
controlling weight, the error is not harmless and the appropriate remedy is remand. Id.
“The medical opinions and diagnoses of treating physicians are generally
accorded substantial deference, and if the opinions are uncontradicted, complete
deference.” Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 240 (6th Cir. 2002), citing
Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). Furthermore, it is well-established
that administrative law judges may not make medical judgments. See Meece v.
Barnhart, 192 Fed. App’x 456, 465 (6th Cir. 2006) (“But judges, including administrative
law judges of the Social Security Administration, must be careful not to succumb to the
temptation to play doctor.”) (quoting Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir.
1990)). Although an ALJ may not substitute his or her opinions for that of a physician,
“an ALJ does not improperly assume the role of a medical expert by assessing the
medical and non-medical evidence before rendering a residual functional capacity
finding.” Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009); see also
Winning v. Comm'r of Soc. Sec., 661 F. Supp.2d 807, 823-24 (N.D. Ohio 2009 )
(“Although the ALJ is charged with making credibility determinations, an ALJ ‘does not

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have the expertise to make medical judgments.’”) (O’Malley, J.)
Specifically, Plaintiff takes issue with the ALJ’s treatment of Dr. Delaney and Dr.
Gillespie’s opinions rendered on May of 2013 and June of 2013 respectively. (Doc. No.
14 at pp. 15-16.)
On May 17, 2013, Dr. Delaney completed a Medical Source Statement
concerning Plaintiff’s mental capacity. (Tr. 724-25.) The form consists of 22 categories
of mental functioning capabilities, which the medical provider was asked to rate as
either constant, frequent, occasional or rare. 3 Dr. Delaney found Plaintiff could only
rarely perform the mental activities described in 14 of the 22 categories, occasionally
perform 7 of the 22, and frequently perform one (the use of judgment). (Tr. 724-25.)
Dr. Delaney indicated that these limitations were based on Plaintiff’s diagnoses of
depression and anxiety, but offered no further elaboration. 4 (Tr. 725.)
On June 11, 2013, Dr. Gillespie completed a Medical Source Statement
concerning Plaintiff’s physical capacity. (Tr. 726-27.) In material part, Dr. Gillespie
opined that Plaintiff could lift/carry 20 pounds occasionally and 10 pounds frequently –
the only imitation that was incorporated into the RFC. (Tr. 726.) Dr. Gillespie further
3

“Constant” was defined as an unlimited ability to perform the activity; “frequent” as the
ability to perform the activity for up to 2/3 or a workday; “occasional” as the ability to
perform the activity for up to 1/3 or a workday; and, “rare” as an inability to perform the
activity in question for “any appreciable time.” (Tr. 724.)
4

With respect to non-exertional limitations, the RFC limited Plaintiff to “simple, routine
tasks with simple, short instructions, [to] mak[ing] simple decisions, [and to] ... few work
place changes.” (Tr. 16.) Without reciting all 22 categories, the RFC plainly did not
incorporate Dr. Delaney’s assessed limitations. By way of example, Dr. Delaney
indicated Plaintiff could only rarely understand, remember and carry out simple job
instructions. (Tr. 724.) As another example, Dr. Delaney also limited Plaintiff to only
occasional interaction with supervisors, co-workers, and the public. (Tr. 724.) The RFC
contains no limits with respect to social interaction.

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opined that Plaintiff could do the following: (1) stand/walk for 2 hours and sit for 2 hours
in an 8-hour workday (each for 30 minutes without interruption); and (2) rarely climb,
balance, stoop, kneel, crouch, and crawl; occasionally reach, push/pull, and perform
fine or gross manipulation. (Tr. 726-27.) He noted that Plaintiff had been prescribed a
cane, would need to alternate between sitting and standing/walking and suffered from
severe pain. (Tr. 727.) The latter would interfere with concentration, take Plaintiff off
task, and cause absenteeism. (Id.) Finally, Dr. Gillespie indicated that Plaintiff would
need two additional breaks on top of those normally permitted during an 8-hour
workday. (Id.) The only explanation offered in support of the assessments is a notation
that an MRI of Plaintiff’s spine shows degenerative disc disease. (Tr. 726-27.)
The ALJ addressed Dr. Delaney’s opinion as follows:
A treating counselor, Rodney B. Delaney, Ph.D., opined that the claimant
mostly has rare-to- occasional abilities in making occupational
adjustments, intellectual functioning, and making personal and social
adjustment (5/17/2013, Exhibit 11F). The undersigned assigns little
weight to this opinion. Even though it is from a treating source, it is
inconsistent with his repeated notations that her symptoms have been in
partial remission (Exhibit 7F, Pages 11 and 36).
(Tr. 19.)
The ALJ acknowledged that Dr. Delaney is a treating source, and the
Commissioner’s brief does not challenge that his opinion is subject to the rigors of the
treating physician rule. (Doc. No. 16 at pp. 17-19.) The ALJ essentially offered one,
singular reason for rejecting this opinion – notations in the record from Dr. Delaney that
stated “symptoms in partial remission.”5 (Tr. 19, citing Exh. 7F, Tr. 430, 455.) The

5

Dr. Delaney made such observations on August 15, 2012, August 29, 2012, October
15, 2012, November 12, 2012, December 3, 2012, and May 17, 2013. (Tr. 430, 455,

12

Commissioner’s brief on this point consists largely of citations to Dr. Delaney’s
treatment notes which, she avers, show largely normal findings. (Doc. No. 16 at pp. 1819.) While the Commissioner’s argument is not entirely unpersuasive, “courts may not
accept appellate counsel’s post hoc rationalizations for agency action. It is
well-established that an agency’s action must be upheld, if at all, on the basis
articulated by the agency itself.” Berryhill v. Shalala, 4 F.3d 993, at *6 (6th Cir. Sept. 16,
1993) (unpublished opinion) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 50 (1983) (citation omitted)). Further, even if the record
supports the Commissioner’s arguments, “a court cannot excuse the denial of a
mandatory procedural protection simply because . . . there is sufficient evidence in the
record for the ALJ to discount the treating source’s opinion and, thus, a different
outcome on remand is unlikely. ‘[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, 378 F.3d at 546 (quoting Mazaleski v. Treusdell, 562 F.2d 701,
719, n.41 (D.C. Cir. 1987)). The only reason actually offered by the ALJ for rejecting
Dr. Delaney’s opinion is the ALJ’s apparent belief that the functional limitations
assessed cannot be as severe as Dr. Delaney suggests if Plaintiff’s symptoms are in
partial remission. This statement, without a more detailed discussion of Dr. Delaney’s
treatment, is insufficient. It is not enough for the ALJ to simply to cite the relevant
exhibits generally, leaving the Court or defense counsel to fill in the factual gaps in the
ALJ’s conclusion. Therefore, the Court finds the ALJ failed to set forth good reasons

665, 679, 700, 872.)

13

for rejecting the opinion of Dr. Delaney, and a remand is required.
With respect to Dr. Gillespie, the ALJ found as follows:
The following year, Dr. Gillespie opined that the claimant can lift/carry 10
pounds frequently and 20 pounds occasionally, stand/walk for 2 hours and
sit for 2 hours in an 8-hour day, has postural limitations, and has “severe”
pain and depression that interferes with work attendance, concentration,
and staying on task (6/11/2013, Exhibit 12F). The undersigned assigns
some weight to this opinion, as it is from an acceptable treating source
and he noted the results of an MRI that showed degenerative disc disease
as support for his opinion. However, he did not include any other
notations or records to support the rest of his opinion. Moreover, the
opinion is not consistent with her taking a Zumba class and the physical
therapist’s notation that she has good strength in her lower extremities.
(Tr. 18-19.)
As the Court has already determined that a remand is necessary, it is
unnecessary to decide whether the ALJ gave sufficient reasons for rejecting Dr.
Gillespie’s opinion.6 However, pursuant to 20 C.F.R. § 416.927(C), “Supportability” is
one of the factors specifically set forth in the regulation, which states that “[t]he more a
medical source presents relevant evidence to support an opinion, particularly medical
signs and laboratory findings, the more weight we will give that opinion. The better an
explanation a source provides for an opinion, the more weight we will give that opinion.”
Dr. Gillespie’s June 2013 opinion gives scant explanation as to what signs or findings
support the severe limitations assessed, and the ALJ appropriately noted that, save for
an MRI revealing degenerative disc disease, the opinion “did not include any other
notations or records to support the rest of his opinion.” (Tr. 19.) Nevertheless, the

6

Though the ALJ purports to assign “some weight” to this opinion, only the
lifting/carrying restrictions assessed by Dr. Gillespie appear to have been incorporated
into the RFC. (Tr. 15-16, 19, 726-27.)

14

Court strongly encourages the ALJ, on remand, to give a more thorough explanation as
to the weight it accorded Dr. Gillespie’s opinion. 7
2. RFC Finding
Plaintiff’s other assignment of error challenges the ALJ’s finding that she is
capable of performing light exertional work. (Doc. No. 14 at pp. 13-15.) Plaintiff further
argues that, had she been limited to sedentary work, the Medical-Vocational guidelines,
specifically 201.10 or 201.12, would have compelled a finding of disabled as of her 50th
birthday. (Id.)
RFC is an indication of a claimant’s work-related abilities despite his limitations.
See 20 C.F.R. § 416.945(a). A claimant’s RFC is not a medical opinion, but an
administrative determination reserved to the Commissioner. See 20 C.F.R. §
416.945(e). As such, the ALJ bears the responsibility for assessing a claimant’s RFC
based on all of the relevant evidence, 20 C.F.R. § 416.945(a), and must consider all of
a claimant’s medically determinable impairments, both individually and in combination,
S.S.R. 96-8p. While RFC is for the ALJ to determine, it is well established that the
claimant bears the burden of establishing the impairments that determine his RFC. See
Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (“The determination of a
claimant's Residual Functional Capacity is a determination based upon the severity of
his medical and mental impairments. This determination is usually made at stages one
through four [of the sequential process for determining whether a claimant is disabled],

7

The ALJ did not discuss, for example, Dr. Gillespie’s statement that Plaintiff needed a
cane or a sit/stand option. Earlier in the decision, the ALJ seemed to question whether
Plaintiff needed a cane, because she admitted to only using one “sometimes” and
because a May 2012 record indicates Plaintiff had no difficulty ambulating. (Tr. 17.)

15

when the claimant is proving the extent of his impairments.”)
As a remand is necessary, Plaintiff’s assignment of error may be rendered moot
as the RFC could change if the ALJ modifies the weight ascribed to either Dr. Gillespie
or Dr. Delaney’s opinions. Plaintiff’s argument is largely predicated upon Dr. Gillespie’s
opinion that she was prescribed a cane, the use of which the ALJ questioned. (Tr. 17.)
Because the RFC determination could change after remand, the Court declines to
address this assignment of error.
VI.

CONCLUSION

For the foregoing reasons, the Commissioner’s final decision is REVERSED and
REMANDED for further proceedings.
IT IS SO ORDERED.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: April 1, 2016

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