Yon v. Commissioner of Social Security

Filing 24

Memorandum Opinion and Order that Yon had no disability lacks substantial evidence. Accordingly, the decision of the Commissioner denying Yon disability insurance benefits and supplemental security income is reversed and remanded for further administrative proceedings. It is so ordered. Magistrate Judge William H. Baughman, Jr., on 11/28/18. (D,Ky)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DOUGLAS A. YON,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 5:18 CV 0358

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION &
ORDER

Introduction
Before me 1 is an action for judicial review of the final decision of the Commissioner
of Social Security denying the applications of plaintiff Douglas A. Yon for disability
insurance benefits and supplemental security income. 2 The Commissioner has answered 3
and filed the transcript of the administrative record. 4 Under my initial 5 and procedural6

1

ECF No. 22. The parties have consented to my jurisdiction.
ECF No. 1.
3
ECF No. 10.
4
ECF No. 11.
5
ECF No. 7.
6
ECF No. 12.
2

orders, the parties have briefed their positions 7 and filed supplemental charts8 and the fact
sheet. 9 They have participated in oral argument. 10

Facts
A.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Yon, who was 52 years old at the time of the hearing, 11 had obtained his GED.12

His past relevant work experience included: food delivery driver; electrician helper;
machine operator; and painter. 13
The Administrative Law Judge (“ALJ”), whose decision became the final decision
of the Commissioner, found that Yon had severe impairments consisting of: low back pain;
rotator cuff tear of the right shoulder; degenerative joint disease of the right hip; depression;
anxiety; borderline intellectual functioning; and drug addiction.14
The ALJ found that Yon had the residual functional capacity (“RFC”) for light work
as defined in the regulations, with some additional limitations. 15 The ALJ decided that this
RFC precluded Yon from performing his past relevant work. 16

7

ECF No. 17 (Commissioner’s brief); ECF Nos. 15, 19 (Yon’s briefs).
ECF No. 17, Attachment 1 (Commissioner’s charts); ECF No. 15, Attachment 1 (Yon’s
charts).
9
ECF No. 14.
10
ECF No. 21.
11
ECF No. 14 (fact sheet).
12
Id.
13
Id.
14
ECF No. 11, Transcript (“Tr.”) at 14.
15
Id. at 16.
16
Id. at 20.
2
8

Based on the testimony of the vocational expert (“VE”) at the hearing, the ALJ
determined that a significant number of jobs existed nationally that Yon could perform. 17
The ALJ, therefore, found Yon not under a disability. 18
B.

Issues on judicial review
Yon asks for reversal of the Commissioner’s decision on the ground that it does not

have the support of substantial evidence in the administrative record. Specifically, Yon
presents the following issues for judicial review:
 Whether the ALJ properly considered the medical opinions offered by the
Commissioner’s psychological consultants.
 Whether the ALJ’s Step Five finding that Yon could work as a housekeeping
cleaner, sales attendant, and mail clerk is supported by substantial evidence.
For the reasons set forth below, I find the ALJ’s no disability finding must be
reversed and this matter remanded for further administrative proceedings consistent with
this opinion.

Analysis
A.

Applicable legal principles

1.

Substantial evidence
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review

applicable to decisions of the ALJs in disability cases:

17
18

Id. at 21.
Id. at 22.
3

Congress has provided for federal court review of Social
Security administrative decisions. However, the scope of
review is limited under 42 U.S.C. § 405(g): “The findings of
the Secretary as to any fact, if supported by substantial
evidence, shall be conclusive. . . .” In other words, on review
of the Commissioner’s decision that claimant is not totally
disabled within the meaning of the Social Security Act, the
only issue reviewable by this court is whether the decision is
supported by substantial evidence. Substantial evidence is
“‘more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.’”
The findings of the Commissioner are not subject to reversal
merely because there exists in the record substantial evidence
to support a different conclusion. This is so because there is a
“zone of choice” within which the Commissioner can act,
without the fear of court interference. 19
Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner
survives “a directed verdict” and wins. 20 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant. 21
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
B.

Application of legal principles
The case presents two issues for decision:

19

Buxton v. Halter, 246 F.3d 762, 772-73 (6th Cir. 2001) (citations omitted).
LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06CV403, 2008 WL 399573, at *1 (S.D. Ohio Feb.
12, 2008).
21
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
4
20

•

The ALJ limited Yon to frequent interactions with coworkers and the public.
The state agency reviewing sources, whose opinions the ALJ gave great
weight, limited him to occasional and superficial interactions. The ALJ did not
explain why he adopted the lesser limitations despite the weight given to the
state agency reviewing sources’ opinions. Is this reversible error?

•

The ALJ limited Yon to occasional handling and reaching overhead with his
right upper extremity. In response to the hypothetical including those
limitations, the VE identified jobs that under the DOT required frequent
reaching overhead and handling with both upper extremities. Given the
Commissioner’s burden of proof at Step Five, does the finding of a significant
number of jobs in the national economy that Yon can perform have the support
of substantial evidence?

At Step Four, the ALJ discussed a consulting examiner’s opinion that noted Yon
had “no limitations socially.”22 The ALJ apparently followed this opinion at Step Three,
finding mild restrictions in social functioning.23 The ALJ gave the consulting examiner’s
opinion great weight, finding it consistent with the medical record evidence.24 But the ALJ
does not explain why he chose to follow the consulting examiner’s opinion over that of the
state agency reviewers’ opinions regarding Yon’s social limitations, which he also found
to be consistent with the medical record evidence and which he also assigned great
weight.25 Further, the state agency reviewing sources’ opinions post-date that of the
consulting examiner, and the consulting examiner’s opinion is acknowledged as part of the
record that the state agency sources reviewed in forming their opinions.26

22

Tr. at 19.
Id. at 15.
24
Id. at 19.
25
Id. at 19-20.
26
Id. at 77-112, 115-44.
23

5

Counsel argues that this violates Social Security Ruling (“SSR”) 96-8p. As the
agency’s own interpretation of the regulations makes plain, “[t]he RFC assessment must
always consider and address medical source opinions. If the RFC assessment conflicts
with an opinion from a medical source, the adjudicator must explain why the opinion was
not adopted.”27 There is no question the ALJ complied with the first part of Social Security
Ruling 96-8p; it is the second part that is missing here. Compounding this error is the
rationale the ALJ gave for giving great weight to the consulting examiner’s opinion and
the state agency sources’ opinions were consistency with the evidence. The ALJ must
always build a logical bridge from the evidence to his conclusions,28 and that did not
happen here. This constitutes error necessitating a remand. But this does not suggest that
substantial evidence to support the RFC does not exist or that the ALJ cannot articulate
reasons for favoring the consulting examiner’s opinion over that of the state agency
reviewing sources. This is a remand for proper articulation.
As to the second issue, I need not reach it. But on remand, the ALJ should question
the VE about whether a limitation to the dominant hand only will support the finding that
a significant number of jobs in the national economy exist that Yon can perform under the
Dictionary of Occupational Titles.

27

SOCIAL SECURITY ADMINISTRATION, SOCIAL SECURITY RULING 96-8P, POLICY
INTERPRETATION RULING TITLES II AND XVI: ASSESSING RESIDUAL FUNCTIONAL
CAPACITY IN INITIAL CLAIMS, 1996 WL 374184, at *7 (July 2, 1996) (“SSR 96-8p”).
28
Hale v. Colvin, No. 3:13cv182, 2014 WL 868124, at *8 (S.D. Ohio March 5, 2014).
6

Conclusion
The finding of the Commissioner that Yon had no disability lacks substantial
evidence.

Accordingly, the decision of the Commissioner denying Yon disability

insurance benefits and supplemental security income is reversed and remanded for further
administrative proceedings. On remand, the ALJ must properly articulate the reasons for
crediting the consulting examiner’s opinions regarding Yon’s social limitations over the
later state agency reviewing sources’ opinions. In addition, the ALJ should question the
VE about the impact a dominant hand only limitation has on the finding that a significant
number of jobs in the national economy exist that Yon can perform.
IT IS SO ORDERED.
Dated: November 28, 2018

s/ William H. Baughman, Jr.
United States Magistrate Judge

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