Segers v. Commissioner of Social Security

Filing 24

Memorandum Opinion: Plaintiffs objections to the Report and Recommendation are overruled, and the Report and Recommendation is accepted. (Doc. No. 21 .) The Commissioner's decision to deny disability benefits is affirmed and this case is closed. Judge Sara Lioi on 9/19/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DAVID L. SEGERS,

PLAINTIFF,
vs.
NANCY BERRYHILL1, Acting
Commissioner of Social Security,

DEFENDANT.

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CASE NO. 5:16-cv-2017

JUDGE SARA LIOI

MEMORANDUM OPINION

Plaintiff David L. Segers (“plaintiff” or “Segers”) appeals from the decision of the Acting
Commissioner of Social Security (“defendant” or “Commissioner”), denying his application for a
Period of Disability (“POD”) and Disability Insurance Benefits (“DIB”). The matter was referred
to Magistrate Judge Thomas M. Parker for the preparation of a Report and Recommendation
(“R&R”). The Magistrate Judge’s R&R recommends that the Court affirm the Commissioner’s
decision. (Doc. No. 21.) Plaintiff has filed objections to the R&R (Doc. No. 22 [“Obj.”]), and the
Commissioner has filed a limited response. (Doc. No. 23 [“Res.”].) Upon de novo review and for
the reasons set forth below, the Court overrules the objections, accepts the R&R, and dismisses
the case.
I. STANDARD OF REVIEW
This Court’s review of the R&R is governed by 28 U.S.C. § 636(b), which requires de

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Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Acting Commissioner Nancy A. Berryhill is
substituted for former Acting Commissioner Carolyn W. Colvin as the defendant in this suit.

novo review as to those portions of the document to which objection is made. “An ‘objection’
that does nothing more than state a disagreement with a magistrate’s suggested resolution, or
simply summarizes what has been presented before, is not an ‘objection’ as that term is used in
this context.” Aldrich v. Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004).
Judicial review of an administrative decision under the Social Security Act is limited to a
determination of whether the administrative law judge (“ALJ”) applied the correct legal
standards and whether there is “substantial evidence” in the record as a whole to support the
decision. 42 U.S.C. § 405(g); Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010)
(citation omitted). “Substantial evidence is less than a preponderance but more than a scintilla; it
refers to relevant evidence that a reasonable mind might accept as adequate to support a
conclusion.” Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014) (citation omitted).
A reviewing court is not permitted to resolve conflicts in evidence or to decide questions
of credibility. DeLong v. Comm’r of Soc. Sec. Admin., 748 F.3d 723, 726 (6th Cir. 2014)
(citation omitted); Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007) (citation omitted). Nor
need the reviewing court necessarily agree with the Commissioner’s determination in order to
affirm it. “Even if [the] Court might have reached a contrary conclusion of fact, the
Commissioner’s decision must be affirmed so long as it is supported by substantial evidence.”
Kyle, 609 F.3d at 854-55 (citation omitted). This is true even if substantial evidence also supports
the claimant’s position. See McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir.
2006) (quotation marks and citation omitted).
Even when there is substantial evidence, however, “‘a decision of the Commissioner will
not be upheld where the [Social Security Administration] fails to follow its own regulations and
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where that error prejudices a claimant on the merits or deprives the claimant of a substantial
right.’” Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen
v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007) (additional citation omitted)).
Likewise, a court “cannot uphold an ALJ’s decision, even if there ‘is enough evidence in the
record to support the decision, [where] the reasons given by the trier of fact do not build an
accurate and logical bridge between the evidence and the result.’” Fleischer v. Astrue, 774 F.
Supp. 2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.
1996); and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 544-46 (6th Cir. 2004) (finding it was
not harmless error for the ALJ to fail to make sufficiently clear why he rejected the treating
physician’s opinion, even if substantial evidence not mentioned by the ALJ may have existed to
support the ultimate decision to reject the treating physician’s opinion)).
II. THE ALJ’S DECISION AND THE R&R
The R&R recommends that the April 30, 2015 decision of the Administrative Law Judge
(“ALJ”), which became the final decision of the Commissioner following administrative review,
be affirmed. In advancing the recommendation, the Magistrate Judge rejected plaintiff’s
arguments that: (1) the hypothetical question posed to the vocational expert (“VE”) was based
on insufficiently vague parameters; (2) the VE deviated from the Dictionary of Occupational
Titles without obtaining testimony explaining the reasoning for the conflict; and (3) the residual
functional capacity (“RFC”) does not appropriately accommodate all of plaintiff’s limitations
and is not supported by substantial evidence.
In his decision, the ALJ followed the familiar five-step sequential evaluation process for
determining whether an individual is disabled. At step two, the ALJ determined that plaintiff had
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the following “severe combination of impairments: left eye blindness and status-post retinal
detachment and repair of the right eye.” (Doc. No. 17 [“ALJ Decision”]) at 952, citation omitted.)
The ALJ found that the combination of these impairments “has more than a minimal effect on
the claimant’s ability to perform work related functions.” (Id.) At step three, the ALJ found that
Segers did not have an impairment or combination of impairments that met or equaled the
severity of one of the impairments listed in the governing regulations. (Id. at 96.)
Between steps three and four, the ALJ crafted an RFC that permitted a range of work at
all exertional levels but with restrictions that prohibited the climbing of ladders or scaffolds,
exposure to hazardous machinery, and commercial driving, and limited the climbing of stairs.
Significant to plaintiff’s objections, the ALJ’s RFC prohibited the reading of fine print and
permitted the reading of newsprint “for up to 20 minutes at a time[.]”3 (Id.) At step four, the ALJ
applied his RFC and found that plaintiff was capable of performing past relevant work as a
telephone salesperson, and that he was not, therefore, disabled within the meaning of the Social
Security Act. (Id. at 99-100.)
With respect to plaintiff’s vagueness argument, the Magistrate Judge found that the
hypothetical question posed to the VE that permitted reading of newsprint “for up to 20 minutes
at a time” was not unreasonably vague because it described both the type of reading material
(“newspaper print”) and the specific range of time the hypothetical individual would be able to
read (not more than 20 minutes at a time). (R&R at 620.) In doing so, the Magistrate Judge
All page number references are to the page identification number generated by the Court’s electronic docketing
system.
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The RFC also prohibited exposure to unprotected heights, limited the use of instructions to those that could be read
or verbally given in 20 minutes or less, restricted any writing to that which could be performed in a “setting with
lighting similar to that of a typical office environment[,]” and permitted performing only occasional near visual
acuity. (ALJ Decision at 96.)
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distinguished case law relied on by plaintiff where hypothetical questions lacked any specific
details regarding the limitations under consideration. (Id. at 621-23, citing, among authority,
Cook v. Comm’r of Soc. Sec., No. 1:14-cv-1320, 2016 WL 369490 (W.D. Mich. Feb. 1, 2016)).
The R&R ultimately concluded that the RFC that flowed from the answer to the hypothetical
question was supported by substantial evidence. (Id. at 631-32.)
III. PLAINTIFF’S OBJECTIONS
In his first objection, plaintiff complains that the Magistrate Judge only addressed a
portion of his vagueness argument, and “did not consider [p]laintiff’s claim that [the hypothetical
question and the RFC] lack specificity regarding how much reading in a workday or workweek
[p]laintiff can perform.”4 (Obj. at 634.) According to plaintiff, the hypothetical question (and the
resulting RFC) are susceptible to a number of interpretations, including one that would permit
almost unlimited reading throughout the day, provided that nominal breaks were afforded
between each 20 minute interval. The ALJ’s failure to account in his RFC for the total
cumulative amount of reading in a workday or workweek, plaintiff posits, renders the ALJ’s
decision unreviewable.
The Court begins with the law governing the RFC and use of hypothetical questions. The
RFC represents the most a claimant can do despite his limitations. See 20 C.F.R. § 416.945(a)(1).
A claimant’s RFC is not a medical opinion, but an administrative determination reserved to the
Commissioner and based upon all of the relevant evidence in the record. See 20 C.F.R. §§

The R&R did address plaintiff’s claim that he could not sustain work on a regular basis because the breaks he
would require after reading for a 20 minute period would put him off task for much of the day. The ALJ noted that
this claim was only supported by plaintiff’s subjective complaints, which the ALJ found to be not entirely credible.
(R&R at 631-32.) The Magistrate Judge correctly observed that credibility determinations regarding a claimant’s
subjective complaints are matters reserved for the ALJ. See Siterlet v. Sec’y of Health & Human Servs., 823 F.2d
918, 920 (6th Cir. 1987) (citation omitted).
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404.1545(a)(2), 416.927(d)(2). The claimant bears the burden of proof during the first four
stages of the analysis, including proving his RFC. Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
474 (6th Cir. 2003) (citation omitted); Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir.
1999).
A hypothetical question is valid if it includes all credible limitations developed prior to
step five. See Casey v. Sec. of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993)
(citation omitted); Donald v. Comm’r of Soc. Sec., No. 08-14784-BC, 2009 WL 4730453, at *7
(E.D. Mich. Dec. 2009); see also Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779
(6th Cir. 1987) (a hypothetical question must comprehensively set forth the physical and mental
impairment that the ALJ accepts as true and significant). When the hypothetical question is
supported by evidence in the record, it need not reflect unsubstantiated allegations by the
claimant. See Blacha v. Sec’y of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990).
However, where the ALJ relies upon the answer to a hypothetical question that fails to
adequately account for all of the claimant’s limitations, it follows that a resulting finding of
disability is not based on substantial evidence. See Newkirk v. Shalala, 25 F.3d 316, 317 (6th Cir.
1994) (citation omitted).
In support of his objection, plaintiff relies upon an unreported decision out of the Western
District of Michigan. In Cook, the ALJ’s hypothetical question to the VE assumed a prohibition
on “prolonged walking.” Cook, 2016 WL 369490, at *3. The court found that the hypothetical
question suffered from a lack of specificity because it required a court “to review a wide range of
possible definitions for ‘prolonged walking.’” Id. In doing so, the court rejected the defendant’s
suggestion that the limitation should be understood as merely incorporating the plaintiff’s
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testimony that he could walk no more than fifteen to twenty minutes because there was no
indication in the record that the general “prolonged walking” language was a translation of the
plaintiff’s more specific testimony. Id. at *4.
Unlike the situation presented in Cook, it is clear that the “up to twenty minutes”
limitation came from plaintiff’s own hearing testimony on his reading limits. (Doc. No. 17
Hearing Transcript [“Tr.”]) at 116 [“But if I sit down to read a normal book, I can go
approximately 20 minutes and then that [rain-like curtain over his eye] gets so thick and full it
blocks my vision and then I have to get up, go do something else, 10, 15 minutes, I’m back and I
can repeat that.”].) The language adequately and precisely reflects plaintiff’s hearing testimony,
and contains specific, quantifiable, and easily understood parameters, making it considerably less
vague than the “prolonged walking” limitation in Cook. Moreover, it would be unreasonable to
interpret the hypothetical or the ALJ’s RFC as permitting only nominal or de minimis breaks.
The fact that a range of “up to” a certain number of minutes was imposed implies that a
reasonable break after any reading period must follow. To employ plaintiff’s proffered
interpretation that the 20 minute reading period may be immediately repeated after only a
perfunctory break would render the time limitation set forth in the RFC meaningless.
Further, plaintiff has failed to point to any medical or anecdotal evidence in the record
that would have dictated that the RFC include a provision allowing for lengthy breaks between
reading periods or a maximum capacity for reading in any workday or workweek. Plaintiff’s own
testimony was that he could return to reading within 10 to 15 minutes after reading for up to 20
minutes. (Id.) Plaintiff has not met his burden of demonstrating that the ALJ was required to
include a limitation requiring a substantial break after reading or a daily limit on reading, and,
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therefore, the reasonable break implied in the ALJ’s RFC is sufficient. See Sorrell v. Comm’r of
Soc. Sec., 656 F. App’x 162, 170 (6th Cir. 2016) (record did not support a limitation that plaintiff
had to elevate her feet during workday).
While most language can be improved upon and greater clarity and detail is always
preferred, the Court finds that the hypothetical question posed to the VE and the ALJ’s RFC
were not so vague as to inhibit meaningful review. See, e.g., Miller v. Soc. Sec. Admin., No.
3:14-2274, 2015 WL 4394800, at *9 (M.D. Tenn. July 16, 2015) (noting that it is only necessary
that the ALJ’s explanation, in the context of the decision as a whole, afford an opportunity for
meaningful review so that the reviewing court can ensure that the decision is supported by
substantial evidence); see also Kobetic v. Comm’r of Soc. Sec., 114 F. App’x 171, 173 (6th Cir.
2004) (reviewing courts are not sanctioned to require remand to obtain the perfect administrative
decision) (citation omitted); Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“[n]o
principle of administrative law or common sense requires us to remand a case in quest of a
perfect opinion unless there is reason to believe that remand might lead to a different result.”)
(citations omitted). Plaintiff’s first objection is overruled.
For the same reasons, plaintiff’s second objection—that the RFC is not supported by
substantial evidence—lacks merit. Plaintiff argues that the “ALJ assigned an almost unlimited
capacity for reading[,]” but the Court has determined that such an interpretation is not reasonable
and there is no indication in the record that the ALJ intended his RFC to permit unlimited
reading of newsprint throughout the day. (Obj. at 638.) While plaintiff points out that medical
evidence established that he has been blind in his left eye since birth and that he has suffered a
detached retina in his right eye requiring surgery, the ALJ noted both of these in his decision.
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(ALJ Decision at 95, 97, record citations omitted.) However, the ALJ concluded that,
notwithstanding these limitations, the record evidence demonstrated that plaintiff retained the
capacity to perform his past relevant work.5 (Id. at 99.) Because this determination is supported
by substantial evidence and involved the application of the correct legal standards, it is affirmed.
See Kyle, 609 F.3d at 854 (citation omitted); Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir.
1994) (citing Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981)).
IV. CONCLUSION
For the reasons discussed above, plaintiff’s objections to the R&R are overruled, and the
R&R is accepted. The Commissioner’s decision to deny disability benefits is affirmed and this
case is closed.
IT IS SO ORDERED.

Dated: September 19, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

Though noting that the “claimant’s medically determinable impairments could reasonably be expected to cause
some” of the symptoms Segers alleged, the ALJ provided specific reasons, supported by the record evidence, as to
why he did not find all of plaintiff’s allegations entirely credible. (ALJ Decision at 97-99.)
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