Smith v. Social Security Administration, Commissioner of
Order Adopting Report and Recommendation (re 17 ). The court hereby affirms the Commissioner's final decision. Signed by Judge Solomon Oliver, Jr on 5/12/2017. (D,M)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
DAVID H. SMITH,
COMMISSIONER OF SOCIAL
Case No.: 1:16 CV 1476
JUDGE SOLOMON OLIVER, JR.
The Commissioner of Social Security Administration (“Commissioner”) denied disability
benefits to Plaintiff David H. Smith (“Plaintiff”or “Smith”), in the above-captioned case. Plaintiff
sought judicial review of the Commissioner’s decision, and this court referred the case to Magistrate
Judge David A. Ruiz (“Magistrate Judge” or “Judge Ruiz”) for preparation of a Report and
Recommendation (“R & R”). Both parties submitted briefs on the merits. Plaintiff argued that the
Administrative Law Judge’s (“ALJ”) decision, denying his applications for a Period of Disability,
Disability Insurance Benefits, and Supplemental Security Income under Titles II and XVI of the
Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq., was not supported by substantial
evidence because insufficient evidentiary weight was given to the opinion of Dr. William Fikter
(“Dr. Fikter”), Smith’s treating psychiatrist, and the testimony of a vocational expert that Plaintiff
is not capable of performing a significant number of jobs in the national economy. The
Commissioner sought final judgment upholding the decision below.
Judge Ruiz submitted his R & R (ECF No. 17) on February 24, 2017, concluding that the
court should affirm the Commissioner’s final decision. As to the first assignment of error, the
Magistrate Judge concludes that the ALJ set forth “good reasons” for ascribing little weight to Dr.
Fikter’s opinion. First, Judge Ruiz finds that the ALJ could properly discount Dr. Fikter’s opinion
because it was the type of checklist opinion typically disfavored by courts for providing little to no
explanation for the findings. (Id. at 21.) Moreover, the Magistrate Judge concludes that the ALJ
provided several additional bases of support for his decision: (1) Dr. Fikter’s course of treatment was
not consistent with the severe limitations delineated in the opinion (id. at 21); (2) “Dr. Fikter’s
treatment records failed to note any objective abnormalities with respect to Smith’s attention and
concentration”(id.); and (3) Dr. Fikter’s treatment notes did not evince an opinion that Smith was
unable to work, should limit his work, or should refrain from working, despite the doctor’s
awareness that Plaintiff was then working. (Id. at 22.) Based on the ALJ’s sufficiently thorough
explanation for according little weight to Dr, Fikter’s opinion, Judge Ruiz recommends that this
court affirm this portion of the Commissioner’s final decision. (Id. at 19, 22.)
The Magistrate Judge also concludes that the second assignment of error is without merit.
(Id. at 27.) In his brief on the merits, Plaintiff asserted that, given the ALJ’s residual functional
capacity (“RFC”) determination, there was not substantial evidence in the record to support a finding
that he is capable of performing a significant number of jobs in the national economy. In his RFC
finding, the ALJ found, in relevant part, that:
Plaintiff’s mental impairments limited him to “simple, routine tasks with no fastpaced work, no strict production quotas, only simple work instructions and decisions,
and minimal or infrequent changes in the work setting; and limited to occasional and
superficial interaction with the public, coworkers, and supervisors.”
(Id. at 27) (quoting ECF No. 12, at 23). At a hearing on the matter, a vocational expert (“VE”), in
response to a hypothetical question from the ALJ incorporating these limitations and restrictions,
initially identified a number of jobs Smith could perform. (Id. at 24.)
However, when cross-examined by Plaintiff’s counsel regarding the conclusion of other
experts that occasional and superficial interaction with supervisors in inconsistent with competitive
employment, the VE, after initially expressing disagreement with that position, stated:
So, it’s superficial contact with a supervisor and, and other VE’s say it’s not
possible. Well, okay, what I can say is that you can’t control for it, that’s all, you
can’t control for it. So, to be on the safe side you would rule it out.
(Id. at 25) (quoting ECF No. 12, at 64–65). After noting that Plaintiff’s counsel had “a valid point,”
the ALJ propounded another hypothetical, eliminating the word “superficial” from the RFC. (Id. at
26.) The VE concluded that the previously identified jobs would remain. (Id.)
Plaintiff’s interpretation of the VE’s testimony was that, after questioning by counsel, she
changed her position and concluded that the previously identified jobs were, in fact, incompatible
with Smith’s limitation to superficial contact with supervisors. Judge Ruiz disagrees. He notes that,
while this is not an implausible interpretation, the more reasonable one is that the VE was simply
addressing her understanding of position of the other experts referenced by counsel. (Id.) In light
of the VE’s prior statements where she clearly indicated disagreement with this position, the
Magistrate Judge reasons that he cannot find that the ALJ erred in continuing to credit the VE’s
testimony that Smith could perform a significant number of jobs, notwithstanding his limitation.
(Id.) Additionally, Judge Ruiz noted that the VE’s response to the last hypothetical, indicating that
Smith could perform the previously identified jobs without inclusion of the term superficial,
undermines Plaintiff’s position. (Id. at 27.) As Judge Ruiz explains, “[e]ven if the ALJ had intended
to omit the term ‘superficial’ from the RFC finding but inadvertently failed to do so, any ensuing
error is rendered harmless by the VE’s testimony in response to the third hypothetical, as that
testimony would constitute substantial evidence on which the ALJ could reasonably rely.” (Id.)
Thus, Judge Ruiz also recommends that this court affirm this portion of the Commissioner’s final
Plaintiff filed Objections to Report and Recommendation (ECF No. 18) on March 6, 2017.
Smith takes issue with the second of the Magistrate Judge’s conclusions— that there was substantial
evidence in the record to support a finding that Plaintiff is capable of performing a significant
number of jobs in the national economy. According to Smith, Judge Ruiz mistakenly concludes that
an omission of the term “superficial” would be harmless error based on the VE’s response to the last
hypothetical. (Id. at 2.) Rather, to find that this was not a necessary limitation, the ALJ would “have
to provide an explanation, supported by evidence of record, as to why this limitation was omitted.”
(Id.) Because the ALJ did not do so, Smith argues that the record does not support a finding that he
can perform a significant number of jobs in the national economy. (Id.)
However, Plaintiff’s argument proceeds from the assumption that the sole interpretation of
the VE’s testimony is that the limitation to superficial contact eliminates all jobs where supervision
is necessary. Smith fails to address the first, and more persuasive, basis for the Magistrate Judge’s
determination—that “the most compelling interpretation” is not that the VE was merely
acknowledging that it was not implausible for her colleagues to hold such a position, “to be on the
safe side.” Thus, the ALJ did not err in relying on her prior, explicit testimony that a person limited
to occasional and superficial interaction with the public, coworkers, and supervisors could still
perform a significant number of jobs in the national economy. And, the fact that the ALJ did not
remove the term “superficial” from his findings supports this conclusion.
Accordingly, the court finds, after careful de novo review of the Magistrate Judge’s R&R
and all other relevant documents in the record, that Judge Ruiz’s conclusions are fully supported by
the record and controlling case law. Accordingly, the court adopts as its own the Magistrate Judge’s
R & R (ECF No. 17). The court hereby affirms the Commissioner’s final decision.
IT IS SO ORDERED.
/s/ SOLOMON OLIVER, JR.
UNITED STATES DISTRICT COURT
May 12, 2017
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