Osborne v. Commissioner of Social Security

Filing 22

Opinion & Order signed by Judge James S. Gwin on 3/6/17. The Court, for the reasons set forth in this order, grants plaintiff's objections in part to the Report and Recommendation of the Magistrate Judge, reverses the Administrative Law Judge's decision and remands the case for further proceedings consistent with this order. (Related Docs. 15 , 17 , and 21 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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WILLIAM F. OSBORNE,
Plaintiff,
vs.
CAROLYN W. COLVIN,
ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

CASE NO. 1:15-CV-2233

OPINION & ORDER
[Resolving Docs. 15, 17, 21]

-----------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
I. Introduction
Plaintiff William Osborne challenges the denial of his application for Period of Disability
(“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”).1
Magistrate Judge Jonathan D. Greenberg recommends affirming the Administrative Law Judge’s
(“ALJ”) denial of benefits.2 For the reasons stated below, this Court GRANTS IN PART the
Plaintiff’s objections, REVERSES the ALJ’s decision, and REMANDS the ALJ’s decision for
further proceedings consistent with this order.

1

Doc. 1. Plaintiff raises these challenges under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i),
423, 1381 et seq.
2
Doc. 17. Plaintiff objected. Doc 20. Defendant responded. Doc. 21.

Case No. 1:15-CV-2233
Gwin, J.
II. Background
At its core, this case deals with whether ALJ Edmund Round properly followed a remand
order when he concluded that Plaintiff Osborne was not disabled from April 30, 2003 through
March 27, 2011.3
On March 27, 2008, Osborne filed applications for POD, DIB, and SSI, alleging a
disability onset date of April 30, 2003. Plaintiff claimed he was disabled due to grand mal
seizures, liver and pancreas damage, epilepsy, lower back pain, depression, anxiety, and short
term memory loss.4
ALJ Kurt Ehrman denied Osborne’s applications,5 so he appealed the decision to the
Northern District of Ohio.6 On September 17, 2013, Magistrate Judge Kathleen Burke reversed
and remanded ALJ Ehrman’s decision.7
On remand, a new ALJ, Edmund Round, denied Osborne benefits. ALJ Round concluded
that Osborne was not disabled from April 30, 2003 through March 27, 2011.8 Osborne
challenged ALJ Round’s decision in this Court on October 30, 2015.9
On October 20, 2016, Magistrate Judge Jonathan Greenberg recommended affirming ALJ
Round’s denial of benefits.10 On December 14, 2016, Plaintiff Osborne filed four objections to
the report and recommendation (“R&R”).11 This Court reviews Osborne’s objections de novo.12

3

In a separate SSI application, Osborne was adjudicated disabled as of March 28, 2011. Doc. 10 at 567-76.
Id. at 125, 130.
5
Id. at 20-30. This case’s procedural posture is complicated by the retirement of the original ALJ and magistrate
judge assigned to this case.
6
Osborne v. Comm'r of Soc. Sec. Admin., 2013 WL 5221107, at *1 (N.D. Ohio Sept. 17, 2013).
7
Id. at *14.
8
Doc. 10 at 492-502.
9
Doc. 1.
10
Doc. 17.
11
Doc. 24.
12
28 U.S.C. § 636(b)(1) (requiring de novo review of the claimant’s objections to a report and recommendation).
4

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Gwin, J.
III. Legal Standard
In reviewing an ALJ’s disability determination under the Social Security Act, a district
court reviews whether the ALJ’s decision is “supported by substantial evidence and [is] made
pursuant to proper legal standards.”13 Substantial evidence is defined as “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”14
A district court is limited in what it can review. Specifically, a district court should not
try to resolve “conflicts in evidence or decide questions of credibility.”15 A district court also
may not reverse an ALJ’s decision when substantial evidence supports it, even if the court would
have made a different decision.16 District courts review decisions of administrative agencies for
harmless error.17
Substantial evidence is more than a scintilla of evidence, but less than a preponderance.18
This Court cannot reverse the ALJ’s decision, even if substantial evidence exists in the record
that would have supported an opposite conclusion, so long as substantial evidence supports the
ALJ’s conclusion.19
IV. Discussion
Plaintiff Osborne objects to Magistrate Greenberg’s R&R. Osborne says that ALJ Round
violated Magistrate Burke’s remand instruction. Osborne says that Magistrate Buke asked ALJ
Round to better explain how Osborne could still work despite his limitations and Round failed to

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); see also 42 U.S.C. § 405(g).
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted).
15
Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
16
See Siterlet v. Sec. of Health and Human Servs., 823 F.2d 918, 920 (6th Cir. 1987); see also Jones v. Comm’r of
Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003) (holding that an ALJ’s decision cannot be overturned so long as
substantial evidence supported the ALJ’s decision).
17
Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 654 (6th Cir. 2009).
18
Richardson, 402 U.S. at 401.
19
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997).
13
14

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Gwin, J.
do so.20 Osborne also argues that ALJ Round improperly evaluated the opinions of three doctors
who examined him—Drs. Ahan, Korick, and Zeck. The Court examines these objections in
turn.

A. ALJ Round violated Magistrate Burke’s remand instruction
Plaintiff says that, on remand, ALJ Round failed to follow Magistrate Burke’s remand
instruction to address Osborne’s residual functional capacity (“RFC”).21
In disability cases, a claimant’s RFC is his ability to do physical and mental work
activities on a sustained basis despite limitations from his impairments.22 The RFC is important
because an ALJ uses it to determine whether a claimant can participate in the workforce or is
disabled.23 An ALJ relies on medical testimony to determine a claimant’s RFC.
In his original decision, ALJ Ehrman found that Osborne was moderately limited in
concentration, persistence, and pace.24 Ehrman did not, however, sufficiently explain this finding
when he determined Osborne’s RFC. In effect, Ehrman failed to explain why Plaintiff could still
work despite these limitations in concentration, persistence, and pace. Therefore, on remand,
Magistrate Burke instructed that:
[T]he ALJ should provide further explanation as to how he accounted in the RFC
for his findings of moderate limitations in concentration, persistence and pace, or
alternatively, explain why additional restrictions beyond simple, routine, and
repetitive tasks and occasional supervision were not necessary.25

20

Osborne v. Comm'r of Soc. Sec. Admin., 2013 WL 5221107, at *1 (N.D. Ohio Sept. 17, 2013).
Doc. 20 at 1.
22
Doc. 10 at 500.
23
20 C.F.R. 404.1520.
24
Doc. 10at 25.
25
Osborne v. Comm’r of Soc. Sec. Admin., 2013 WL 5221107, at *14 (N.D. Ohio Sept. 17, 2013).
21

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Gwin, J.
On remand, ALJ Round also concluded that the Plaintiff has moderate difficulties with
concentration, persistence, and pace.26 Plaintiff Osborne says that ALJ Round made the same
mistake as ALJ Ehrman—Round failed to sufficiently account for Osborne’s moderate
limitations in concentration, persistence, and pace when Round crafted Osborne’s RFC. 27
“[O]n the remand of a case after appeal, it is the duty of the . . . agency from which
appeal is taken, to comply with the mandate of the court and to obey the directions therein
without variation and without departing from such directions.”28 “Deviation from the court’s
remand order in subsequent administrative proceedings is itself legal error, subject to reversal on
further judicial review.”29 “[T]he administrative law judge may not do anything expressly or
impliedly in contradiction to the district court’s remand order.”30 However, “[t]hese cases do not

26
27

Doc. 10 at 503.
Doc. 20 at 3. Doc. 13 at 13. Here is ALJ Ehrman’s RFC:
After careful consideration of the entire record, the undersigned finds that the claimant has the
residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and
416.967(c) except the claimant is limited to never climbing ladders or scaffolding; no more than
frequently climbing ramps and stairs; occasional balancing; no more than frequently stoop, kneel,
crouch, or crawl. The claimant is to avoid concentrated exposure to excessive noise and to
excessive vibration; avoid all unprotected heights, and moving machinery. Available positions
must not require operation of a motor vehicle. The claimant is restricted to simple, routine and
repetitive tasks, with only occasional supervision, occasional interaction with co-workers, and
isolation from the public. Doc. 10 at 26.

Here is ALJ Round’s RFC:
The claimant retails the following residual functional capacity. He has no exertional limitations.
He is precluded from using ladders, ropes and scaffolds and from all exposure to workplace
hazards such as unprotected heights and moving machinery. He is precluded from occupational
driving. He is limited to simple, routine, low stress tasks. This means the following. He is
precluded from work in fast-paced production environments. He is limited to superficial
interaction with supervisors, coworkers and the public. He is precluded from tasks requiring
arbitration, negotiation, confrontation, directing the work of others, or being responsible for the
safety of others. Id. at 504.
28

Mefford v. Gardner, 383 F.2d 748, 758 (6th Cir. 1967).
Sullivan v. Hudson, 490 U.S. 877, 886 (1989) (citing Mefford, 383 F.2d at 758–59).
30
Hollins v. Massanari, 49 Fed. App'x 533, 536 (6th Cir. 2002).
29

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Case No. 1:15-CV-2233
Gwin, J.
preclude the ALJ from acting in ways that go beyond, but are not inconsistent with, the district
court’s opinion.”31
ALJ Round failed to comply with Magistrate Burke’s remand order. ALJ Round never
explained “how he accounted in RFC for his findings of moderate limitations in concentration,
persistence and pace.”32 ALJ Round and ALJ Ehrman’s decisions each suffer the same hole:
neither establishes how their respective RFCs account for Osbourne’s limited concentration,
persistence and pace. Each decision lists medical professionals’ findings regarding Osborne’s
concentration, persistence, and pace, but neither decision uses those findings to explicitly
account for concentration, persistence, and pace in its RFC recommendation.33
This error is not harmless.
On one hand, the error seems formalistic. In his original decision, ALJ Ehrman wrote
“Thus, the RFC accounts for the claimant’s limitation with focusing and concentrating by
requiring occasional supervision.”34 Perhaps Ehrman could have avoided Magistrate Burke’s
original remand if he had added persistence and pace to that sentence as well as a few lines of
analysis. Likewise, ALJ Round’s decision would probably have complied with the remand if he
spent a few sentences explicitly connecting the medical professionals’ findings on Osborne’s
concentration, persistence, and pace with his RFC recommendation.
On the other hand, thorough consideration of Plaintiff Osborne’s concentration,
persistence, and pace capabilities could be outcome determinative. The extensive record

31

Id.
Osborne v. Comm'r of Soc. Sec. Admin., 2013 WL 5221107, at *14 (N.D. Ohio Sept. 17, 2013) (emphasis in
original). Round could have also followed Magistrate Burke’s remand by explaining “why additional restrictions
beyond simple, routine, and repetitive tasks and occasional supervision were not necessary.” Id. He did not do so.
33
ALJ Ehrman noted that “[t]wo non-treating [disability determination services] sources had previously reviewed
the case and agreed as to moderate limitations in regard to concentration, persistence, and pace.” Doc. 10 at 28.
ALJ Round wrote that Dr. Zeck had “found that the claimant was mildly limited in his ability to maintain attention,
concentration, persistence, and pace to perform simple, repetitive tasks.” Id. at 505.
34
Doc. 10 at 28.
32

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Case No. 1:15-CV-2233
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indicates that this is a close case.35 After connecting Osborne’s concentration, persistence, and
pace limitations to his RFC, an ALJ could conclude that Osborne could not work from April 30,
2003 through March 27, 2011.
Therefore, this Court remands this case back to the ALJ with the same instructions
Magistrate Burke gave: The ALJ should provide further explanation as to how he accounted in
the RFC for his findings of moderate limitations in concentration, persistence and pace, or
alternatively, explain why additional restrictions beyond simple, routine, and repetitive tasks and
occasional supervision were not necessary.

B. ALJ Round stated “good reasons” for discounting Dr. Ahn’s opinion
Plaintiff Osborne argues that ALJ Round failed to give good reasons for discounting the
opinion of Dr. Ahn, Osborne’s treating psychiatrist, when Round decided that Osborne was not
disabled.36 Dr. Ahn had stated that Osborne was “markedly” limited in interacting appropriately
with others, keeping a regular work schedule, performing work activities at a reasonable pace,
and maintaining attention for two-hour periods of time.37 This Court, however, agrees with
Magistrate Judge Greenberg: ALJ Round supported his decision to discount Dr. Ahn’s opinion
with “good reasons.”
Under the treating physician rule, “treating source opinions must be given ‘controlling
weight’ if two conditions are met: (1) the opinion ‘is well-supported by medically acceptable

For instance, after listing Osborne’s various impairments, Dr. Koricke summarized that Osborne “lacks the mental
consistency required to adequately and regularly complete work-related tasks.” Id. at 228. Dr. Koricke also found
that Osborne “shows limitations in the area of relating to others, attention, concentration, persistence, and memory
deficits that would affect his ability to perform work related tasks.” Id.
36
Doc. 20 at 4-6.
37
Doc. 10 at 465.
35

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Case No. 1:15-CV-2233
Gwin, J.
clinical and laboratory diagnostic techniques’; and (2) the opinion ‘is not inconsistent with the
other substantial evidence in [the] case record.’”38
An ALJ can give a treating source’s opinion less than controlling weight, however, if he
gives “good reasons” for doing so. “Good reasons” are reasons that are sufficiently specific to
make clear to any subsequent reviewers the weight given to the treating physician’s opinion and
the reasons for that weight.39
In deciding the weight give to a treating physician’s opinion, the ALJ must consider
factors such as (1) the length of the treatment relationship and the frequency of the examination,
(2) the nature and extent of the treatment relationship, (3) the supportability of the opinion, (4)
the consistency of the opinion with the record as whole, (5) the specialization of the source, and
(6) any other factors that tend to support or contradict the opinion.40 An ALJ is not required to
provide “an exhaustive factor-by-factor analysis.”41
ALJ Round’s stated reasons for discounting Dr. Ahn’s opinion constitute “good reasons.”
Round noted that Dr. Ahn had only treated Osborne for four months when Dr. Ahn made the
diagnoses in question.42 Furthermore, Round discounted Dr. Ahn’s findings because they were
“not supported by Dr. Ahn’s subsequent treatment notes which establish that the claimant was
doing well on his medication.”43 These are “good reasons” supported by substantial evidence.
Plaintiff notes that other doctors support Dr. Ahn’s conclusion that Osborne struggles to
sustain work.44 Plaintiff contends ALJ Round should have discussed why he did not give weight

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)(2)).
Id.
40
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 747 (6th Cir. 2007).
41
See Francis v. Comm’r of Soc. Sec., 414 F. App’x 802, 804 (6th Cir. 2011).
42
Doc. 10 at 506; see also Doc. 17 at 40.
43
Doc. 10 at 506. For example, Dr. Ahn’s treatment notes say Osborne “reported that he has noticed some
improvement in his anxiety, as well as being able to sleep better” and “[t]he patient has had increasing anxiety and
depression during the holidays, but is feeling better now that it is over.” Id. at 708-09.
44
Doc. 20 at 5.
38
39

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to the consistency among these opinions.45 This argument loses because an ALJ is required only
to support its decision with substantial evidence, not exhaust every possible argument.46
ALJ Round gave good reasons for discounting Dr. Ahn’s opinion.

C. Substantial evidence supports ALJ Round’s evaluation of Dr. Koricke’s opinion
Plaintiff says ALJ Round erred when he did not address specific language in opinions
from Doctors Koricke and Zeck. Plaintiff is wrong. ALJs must support their findings with
substantial evidence, but they do not need to directly address every phrase in every medical
opinion they evaluate.47
Here, substantial evidence supports ALJ Round’s evaluations of Drs. Koricke and Zeck’s
opinions.
Weighing Dr. Zeck’s Opinion
ALJ Round gave “great weight” to Dr. Zeck’s opinion.48 Round noted that Zeck
described Osborne as moderately limited and scored Osborne’s Global Assessment of
Functioning (“GAF”)49 at 52—conclusions Round found were “supported by the overall
evidence in the record.”50
Substantial evidence supports this conclusion. A 52 GAF correlates with moderate
symptoms such as few friends and a flat affect.51 Dr. Zeck notes that Osborne has a girlfriend

45

Id.
See Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013).
47
See, e.g., Divins v. Astrue, 2012 WL 220246, at *11 (S.D. Ohio Jan. 25, 2012) (“There is no requirement that the
ALJ adopt the precise language offered by a medical source, as long as the ALJ’s conclusion as to a claimant’s RFC
is supported by substantial evidence.”).
48
Doc. 10 at 505; see also id. at 304-11. Dr. Zeck performed a consultative psychological exam on Osborne.
49
According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders,
Fourth Edition (“DSM–IV”), the Global Assessment of Functioning scale considers “psychological, social, and
occupational functioning on a hypothetical continuum of mental health-illness.” Patients are assigned a score on a
scale of 0-100. The scale is available at http://www.albany.edu/caps/gaf/.
50
Doc. 10 at 505
51
Diagnostic and Statistical Manual of Mental Disorders at 34 (American Psychiatric Ass’n, 4th ed., 2000).
46

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and a flat affect.52 This is substantial evidence supporting ALJ’s Round’s decision to give “great
weight” to Dr. Zeck’s opinion.
Weighing Dr. Koricke’s opinion
ALJ Round accorded only “some weight” to Dr. Koricke’s opinion.53 Round noted that
Dr. Koricke diagnosed Osborne as moderately impaired,54 but then assigned him a GAF score of
45.55 ALJ Round then concluded Dr. Koricke’s opinion deserved less weight because a 45 GAF
indicates serious symptoms and Dr. Koricke had only diagnosed Osborne as moderately
impaired.56
This conclusion is based on substantial evidence. A 45 GAF correlates with severe
symptoms such as suicidal ideation and no friends.57 Dr. Kornicke’s notes indicate that Osborne
occasionally talks to friends on the phone58 and does not have suicidal ideation.59 Therefore,
substantial evidence supports ALJ Round’s decision to assign “some weight” to Dr. Koricke’s
opinion.

52

Doc. 10 at 307-08.
Id. at 505-06. Dr. Koricke performed a consultative psychological exam on Osborne.
54
Id. at 505. “She opined that the claimant was moderately limited in his ability to relate to others, understand,
remember and follow directions, maintain attention and concentration, and withstand the stress and pressures
associated with day to day work activity, because these findings are supported by the record.”
55
Id.
56
Id. at 505-06.
57
Diagnostic and Statistical Manual of Mental Disorders at 34 (American Psychiatric Ass’n, 4th ed., 2000).
58
Doc. 10 at 227.
59
Id. at 226.
53

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V. Conclusion
In accordance with the foregoing opinion, this Court GRANTS in PART the Plaintiff’s
objections, REVERSES the ALJ’s decision, and REMANDS the ALJ’s decision for further
proceedings consistent with this order.
IT IS SO ORDERED.

Dated: March 6, 2017

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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