Norris v. Commissioner of Social Security

Filing 16

Memorandum Opinion and Order. The Magistrate Judge's Report and Recommendation (R. 13 ) is Adopted, Plaintiff's objections are Overruled (R. 14 ), and the Commissioner's decision is Affirmed. Judge David A. Ruiz on 9/25/2024. (G,CA)

conduct a de novo review of those portions of the Report to which an objection has been made.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Rule 72.3(b). “A general objection to the
entirety of the magistrate’s report has the same effects as would a failure to object.” Howard v.
Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991); accord Austin v. Comm’r of
Soc. Sec., 2021 WL 1540389, at *4 (N.D. Ohio, Apr. 19, 2021) (finding that a general objection
that merely restates an argument previously presented or simply voices a disagreement with a
magistrate judge’s suggested resolution “has the same effects as would a failure to object.”)
(citations omitted).
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 v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). A decision
supported by substantial evidence will not be overturned even though substantial evidence
supports the opposite conclusion. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010);
see also Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). “The
substantial-evidence standard ... presupposes that there is a zone of choice within which the
decisionmakers can go either way, without interference by the courts.” Mullen v. Bowen, 800
F.2d 535, 545 (6th Cir. 1986) (emphasis added). Therefore, if substantial evidence supports the
ALJ’s decision, a court must defer to that finding “even if there is substantial evidence in the
record that would have supported an opposite conclusion.” Key v. Callahan, 109 F.3d 270, 273
(6th Cir. 1997).
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II. Analysis
A. Relevant Background
With respect to a July 28, 2022 treating source opinion from Barabara Hunt, Ph. D.,
CPCC, CSW (R. 7, PageID# 696-701, Tr. 662-667), the ALJ determined that:
This opinion is out of proportion with the progress notes from Dr. Hunt, which
demonstrated the claimant moved to multiple locations in recent years (Louisiana,
Nevada, Montana, Indiana, Illinois, and Ohio), that the claimant gets along with
roommates and friends online, he was able to manage household chores, and
working part-time. The claimant’s mental status findings were also inconsistent
with the “marked” and “extreme” limitations as he presented as cooperative,
pleasant, alert, with normal cognition and memory, and reporting a good response
to medication with his prescribing providers. As a whole, Dr. Hunt’s opinion is
out of proportion with the evidence regarding the claimant’s functioning during
this period, and therefore is not persuasive.
(R. 7, PageID# 73, Tr. 38-39). The ALJ determined that Plaintiff retained the residual functional
capacity (RFC) to perform medium exertional work with some environmental restrictions and the
following non-exertional limitations: “[t]he claimant can perform simple routine tasks (consistent
with unskilled work); can perform work with infrequent change where changes are explained in
advance and gradually implemented; and can engage in superficial interaction (meaning of a
short duration for a specific purpose) with others.” (Tr. 68).
The ALJ found Plaintiff was unable to perform his past relevant work and proceeded to
Step Five of the sequential evaluation where the ALJ determined that a significant number of
jobs existed that Plaintiff could perform based on the vocational expert’s (VE) testimony.1 (Tr.
74-75).
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The VE identified the following “representative” jobs that an individual with Plaintiff’s
limitations could perform: sorter, small parts, Dictionary of Occupational Titles (DOT) 521.687086 (1,800 jobs nationally); table worker, DOT 739.687-182 (1,000 jobs nationally); and
document preparer, DOT 249.587-018 (16,000 jobs nationally). (Tr. 79). These jobs add up to
18,800 jobs nationally.
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Plaintiff’s Objections to the Report and Recommendation raises the following objections:
(1) the R&R incorrectly found the opinion of Dr. Hunt was a “check-box” form; and (2) the
R&R incorrectly found that a significant numbers of jobs existed that Plaintiff could perform. (R.
14).
B. Objections
1. Check-Box Format
In his objections, Plaintiff takes issue with the R&R’s determination that the opinion of
Dr. Hunt was a “check-box” form, and suggests that because the ALJ never noted this, it
constitutes a post hoc argument. (R. 14, PageID# 1491-1492). Plaintiff also disagrees that the
opinion of Dr. Hunt was in a check-box format, asserting that “Dr. Hunt not only defined
relevant limitations, but also provided written details and explanation.” Id. citing Tr. 662.
First, the Court has reviewed the July 28, 2022 RFC questionnaire completed by Dr. Hunt
(Tr. 662-667) and agrees with the Magistrate Judge that it constitutes a classic check-the-box
style form. Plaintiff cites the only portion of the form that did not involve checking an “x” or
circling “yes” or “no” by Dr. Hunt, which is comprised of three short fragments of sentences:
“Patient struggles w/ extreme anxiety w/ agoraphobia. He isn’t able to leave his residence w/o
someone with him. Very dependent & unable to make own decisions.” (Tr. 662).
This Court has previously observed that “numerous decisions have found that the use of
checklist or check-the-box forms that contain little to no accompanying explanation for the
assessed limitations—even when utilized by a treating physician or acceptable medical source—
are unsupported opinions and, therefore, an ALJ may properly reject source opinions contained
in such forms.” Maldonado v. Saul, No. 1:20-cv-01120, 2021 U.S. Dist. LEXIS 143295, at *15
(N.D. Ohio July 26, 2021). One Sixth Circuit decision went even further and determined that a
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check-box opinion, unaccompanied by any explanation, is “ ‘weak evidence at best’ and meets
our patently deficient standard.” Hernandez v. Comm'r of Soc. Sec., 644 Fed. App'x 468, 475
(6th Cir. 2016) (citing Friend v. Comm'r of Soc. Sec., 375 Fed. App'x 543, 551 (6th Cir. 2010)).
The doctor’s statement amounts to nothing more than a diagnosis—extreme anxiety with
agoraphobia—coupled with alleged restrictions. No attempt is made to explain how or why
Plaintiff’s symptoms prevent him from leaving the household or making decisions.
Moreover, to the extent the objections suggest the Magistrate Judge’s resolution of
Plaintiff’s first assignment of error hinged on the above determination, it would be inaccurate.
The R&R contains a thorough and lengthy (nearly nine-page) analysis of the ALJ’s decision
concerning the weight ascribed to Dr. Hunt’s opinion, including great detail given to the
consistency, or lack thereof, of the doctor’s opinion with her own treatment history. (R. 13,
PageID# 1478-1487). Notably, Plaintiff has not objected to this portion of the R&R. As such,
even assuming arguendo that Dr. Hunt’s opinion was not a checkbox-style opinion of little
value, the R&R more than adequately addressed Plaintiff’s first assignment of error.
Plaintiff’s first objection is not well taken and overruled.
2. Substantial Number of Jobs
In his Brief on the Merits, Plaintiff took the position that the 18,800 jobs identified by the
VE in her testimony did not rise to the level of “a significant number in the national economy.”
(R. 9, PageID# 1421). “There is no ‘magic number’ that qualifies as ‘significant’ for purposes of
satisfying this prong of the disability inquiry.” Cunningham v. Astrue, 360 F. App'x 606, 615
(6th Cir. 2010) (“the determination is a fact-specific inquiry, guided by common sense”) (citing
Hall v. Bowen, 837 F.2d 272, 275 (6th Cir. 1988)).
The Sixth Circuit has stated:
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We know that we cannot set forth one special number which is to be the boundary
between a “significant number” and an insignificant number of jobs. The figure
that the ALJ here found is not that magic number; the 1350 figure is to be viewed
in the context of this case only. A judge should consider many criteria in
determining whether work exists in significant numbers, some of which might
include: the level of claimant’s disability; the reliability of the vocational expert’s
testimony; the reliability of the claimant’s testimony; the distance claimant is
capable of travelling to engage in the assigned work; the isolated nature of the
jobs; the types and availability of such work, and so on. The decision should
ultimately be left to the trial judge’s common sense in weighing the statutory
language as applied to a particular claimant’s factual situation.
Hall, 837 F.2d at 275.
First, the Court notes that Plaintiff’s objections have not developed any argument
asserting that 18,800 jobs nationally is not supported by the facts and circumstances of this case.
Plaintiff makes no attempt to discuss the factors in Hall and argue why 18,800 jobs is not
significant as it pertains to the facts and circumstances of his case. (R. 14). Instead, Plaintiff’s
Brief on the Merits had cited a number of non-binding decisions that found a comparable number
of jobs—or at times even a greater number of jobs—did not constitute a significant number of
jobs in the national economy. (R. 9, PageID# 1421-1422). Essentially, Plaintiff was attempting to
establish a sort of floor for the number of jobs in the national economy that an ALJ could not go
below.
The Commissioner, while acknowledging that the burden shifts to the Commissioner at
Step Five of the sequential evaluation to demonstrate that there remains a “significant number”
of jobs in the national economy that a claimant is capable of working, cited two Sixth Circuit
cases finding that a number less than 18,800 jobs nationally were sufficient. (R. 11, PageID#
1448). The R&R specifically acknowledged the Sixth Circuit’s holding in Taskila v.
Commissioner of Social Security, where the Court of Appeals squarely rejected the argument that
6,000 jobs nationally did not amount to a “significant number” of available jobs. (R. 13, PageID#
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1489, citing Taskila, 819 F.3d 902, 905 (6th Cir. 2016) (“But caselaw, here and elsewhere, cuts
the other way. Six thousand jobs in the United States fits comfortably within what this court and
others have deemed ‘significant’”)); see also Kutyba v. Comm'r of Soc. Sec. Admin., 2023 WL
1438853, at *10 (N.D. Ohio Jan. 31, 2023) (finding no error in the ALJ’s determination that
14,000 jobs nationally constituted a significant number).
In his reply brief, Plaintiff again eschewed any argument suggesting that 18,800 jobs
nationally were insufficient based on the unique facts of this case. Instead, Plaintiff cited a 2021
case from the Eastern District of Michigan that critiqued the Sixth Circuit’s holding in Taskila
and other cases suggesting their conclusions misconstrued local and regional figures for national
job figures. The Court disagrees, as a complete reading of the Taskila decision provides the
unambiguous determination that the court found 200 jobs locally and 6,000 jobs nationally to be
a meaningful and significant number of available jobs. Taskila, 819 F.3d at 906 (finding the ALJ
did not commit reversible error because, inter alia, “substantial evidence supports the conclusion
that Taskila could perform at least two jobs that are meaningfully available locally (200 jobs)
and nationally (6000).”).
Plaintiff’s objections, however, assert that “the R&R completely ignored Plaintiff’s
arguments relating to the pure fact that Taskila and Nejat were based upon improper
calculations.” (R. 14, PageID# 1493, citing Isaac v. Comm’r of Soc. Sec., 2021 WL 4770122, *7
(E.D. Mich. Sept. 14, 2021) (Altman, M.J.), report and recommendation adopted by 2021 WL
4167211, at *1 (E.D. Mich. Sept. 14, 2021)). Plaintiff’s assertion is wholly inaccurate. The R&R
expressly acknowledges Plaintiff’s reply brief, its citations to cases outside of the Northern
District of Ohio, and “decisions in other districts that found, as Norris characterized, that Taskila
was based on ‘incorrect calculations/reviews.’” (R. 13, PageID# 1488, citing R. 12, PageID#
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1455-1456). The R&R resolved the conflict between the non-binding district court decision from
Isaac and the Sixth Circuit’s decision in Taskila as follows:
The Sixth Circuit has not overruled Taskila. See Moats v. Comm’r of Soc. Sec., 42
F.4th 558, 563 (6th Cir. 2022) (relying on Taskila for the point that 6,000 jobs
could be deemed significant), cert. denied sub nom. Moats v. Kijakazi, 143 S. Ct.
785 (2023). It should go without saying that this Court is not going to ignore
binding Sixth Circuit precedent simply because Norris thinks that it was wrongly
decided.
(R. 13, PageID# 1489).
Albeit succinct, the Court finds no error in the R&R on this point. Indeed, the Sixth
Circuit’s Moats decision, which was decided after the Eastern District of Michigan’s Isaac
decision, could have opted against following Taskila and citing it with approval, if it had
determined, as Plaintiff suggests, that Taskila was erroneously decided. While Taskila does not
establish any sort of bright-line floor or magic number of national jobs that is sufficient to satisfy
Step Five, it remains good law in this Circuit for the proposition that as few as 6,000 jobs
nationally can constitute significant numbers depending on “a particular claimant’s factual
situation.” Hall, 837 F.2d at 275. As stated above, Plaintiff has not raised any argument—aside
from his national numbers based argument—that 18,800 jobs do not constitute a significant
number of jobs as applied to the particular facts and circumstances of his case.
Therefore, the Court has considered de novo Plaintiff’s Step Five argument raised as his
second objection. However, the Court reaches the same conclusion as the R&R and adopts its
finding and overrules the objection.
III. Conclusion
The Court has carefully reviewed the Report and Recommendation, according to the
above-referenced standard, as well as the ALJ’s decision, and Plaintiff’s objections. The Court

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agrees with the Magistrate Judge’s resolution of the issues raised. Therefore, the Magistrate
Judge’s Report and Recommendation (R. 13) is hereby Adopted, Plaintiff’s objections are
Overruled (R. 14), and the Commissioner’s decision is hereby Affirmed.
IT IS SO ORDERED.
September 25, 2024

s/ David A. Ruiz
David A. Ruiz
United States District Judge

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