Miller v. Commissioner of Social Security

Filing 22

OPINION AND ORDER: The Court Orders that the Commissioner of Social Security's nondisability finding is REVERSED and the Court REMANDS this case to the Commissioner and the ALJ under Sentence Four of § 405(g). Signed by Magistrate Judge Elizabeth Preston Deavers on 8/29/2014. (mas1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BRUCE MILLER,
Plaintiff,
Civil Action 2:13-cv-705
Magistrate Judge Elizabeth P. Deavers
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff, Bruce Miller, brings this action under 42 U.S.C. § 405(g) for review of a final
decision of the Commissioner of Social Security (“Commissioner”) denying his application for
social security disability insurance benefits. This matter is before the Court for consideration of
Plaintiff’s Statement of Errors (ECF No. 15), the Commissioner’s Memorandum in Opposition
(ECF No. 21), and the administrative record (ECF No. 9). For the reasons that follow, the Court
REVERSES the Commissioner of Social Security’s nondisability finding and REMANDS this
case to the Commissioner and the ALJ under Sentence Four of § 405(g).
I.
A.

Procedural History
Plaintiff has filed applications for benefits on numerous occasions. (See R. at 17,

279–81.) He protectively filed his current application for benefits on March 25, 2010, alleging
that he has been disabled since August 13, 2006,1 at age 42. (R. at 222–28.) Plaintiff alleges
disability as a result of severe depression, anxiety, diabetes (brittle diabetic), sciatic nerve

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Plaintiff amended his alleged disability onset date to September 25, 2009, based on the prior
September 24, 2009 administrative decision. (R. at 84-106, 263).

problem, acid reflux, enlarged prostrate, allergies (asthma-like symptoms), arthritis, neuropathy,
hypertension, GERD (gastroesophageal reflux disease), lower back problems, problems with his
left knee, and vitamin D deficiency. (R. at 285.) Plaintiff’s application was denied initially and
upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge.
Administrative Law Judge James Toschi (“ALJ Toschi”) held a video hearing on March 2, 2012,
at which Plaintiff, represented by counsel, appeared and testified. (R. at 49–54.) Judith
Brendemuhl, M.D., a medical expert; David Blair, Ph.D., a psychological expert; and Karen
White, a vocational expert (“VE”), also appeared and testified at the hearing. (R. at 42–48, 50,
54–61.) On March 14, 2012, ALJ Toschi issued a decision finding that Plaintiff was not
disabled within the meaning of the Social Security Act at any time from September 25, 2009 (the
amended alleged onset date) through December 31, 2009 (the date last insured). (R. at 14–38.)
On May 16, 2013, the Appeals Council denied Plaintiff’s request for review and adopted ALJ
Toschi’s decision as the Commissioner’s final decision. (R. at 1–4.) Plaintiff then timely
commenced the instant action.
In his Statement of Errors, Plaintiff asserts that ALJ Toschi failed to properly apply the
doctrine of res judicata to a previous adjudication in accordance with Drummond v. Comm’r of
Social Security, 126 F.3d 837 (6th Cir. 1997), and Acquiescence Ruling 98-46 (“AR 98-4(6)”).
Plaintiff alternatively contends that ALJ Toschi erred in assessing his credibility, particularly in
relation to his complaints of pain. In her Memorandum in Opposition, the Commissioner
concedes that ALJ Toschi failed to comply with AR 98-4(6), but posits that the error was not
harmful because the VE testified that an exemplary position she identified, as relevant here, was

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typically performed at the sedentary level and could be performed with a sit-stand option.
(Mem. in Opp. 2–5, ECF No. 21.)
The Court agrees with the parties that ALJ Toschi failed to comply with AR 98-4(6). But
contrary to the Commissioner’s assertion, the VE’s testimony does not render the error harmless.
This finding obviates the need for consideration of Plaintiff’s alternative assignment of error.
Accordingly, the Court limits its review of the evidence to those portions of the hearing
testimony, decision, and record that are at issue.
B.

Factual Background
On September 24, 2009, Administrative Law Judge William Paxton (“ALJ Paxton”)

issued a decision finding that Plaintiff was not disabled within the meaning of the Social
Security Act based upon a prior application for benefits. The Appeals Council denied Plaintiff’s
request for review and adopted ALJ Paxton’s decision as the Commissioner’s final decision.
Because Plaintiff did not further appeal, ALJ Paxton’s September 24, 2009 decision is final.
ALJ Paxton concluded that Plaintiff suffered from a number of severe, medically determinable
impairments, including “diabetes mellitis, diabetic neuropathy and retinopathy, status post left
tibial fracture, chondromalacia of the left patella, recurrent major depression and generalized
anxiety disorder.” (R. at 90.) ALJ Paxton further found that Plaintiff retained the following
residual functional capacity (“RFC”)2 :
[C]laimant has the residual functional capacity to perform sedentary work as defined
in 20 CFR 404.1567(a) except that he is unable to crawl or climb ladders, ropes or
scaffolds. He could occasionally claim ramps and stairs, balance, stoop, kneel and

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A claimant’s “residual functional capacity” is an assessment of the most a claimant can
do in a work setting despite his or her physical or mental limitations. 20 C.F.R. § 404.1545(a);
see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002).
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crouch. He must avoid concentrated exposure to extreme heat and extreme cold. He
must avoid all exposure to hazards, such as machinery and heights. He is limited to
performing unskilled, simple tasks in a low-stress work environment that does not
involve dealing with the public. Also, he must avoid fast-paced work or jobs with
production quotas.
(R. at 97 (emphasis added).)
In ALJ Toschi’s March 4, 2012 decision, he found that through the date last insured,
Plaintiff had the severe impairments of “diabetes mellitus with peripheral neuropathy,
osteoarthritis of the left knee, pain of the low back, anxiety, schizotypal personality disorder, and
avoidant personality disorder . . . .” (R. at 20.) ALJ Toschi further found that Plaintiff retained
the following RFC:
[C]laimant had the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) except this individual is limited to standing and/or walking on
level ground for no more than two hours per day. This individual must be provided
a sit/stand option every hour. He must avoid climbing ladders, ropes, or scaffolds;
balancing; kneeling; and crawling. This individual can climb ramps and stairs and
crouch less than occasionally. He can occasionally stoop. Also, this individual
should avoid concentrated exposure to heat, cold, and vibrations. Further, he should
avoid all exposure to hazards such as heights and machinery. In addition, this
individual is limited to detailed instructions and tasks. He can have only occasional
contact with the public and frequent contact with coworkers and supervisors. He
should not work an environment with fast-paced work or strict quota requirements.
(R. at 26 (emphasis added).)
The emphasized language reflects that ALJ Toschi found that Plaintiff was capable of a
higher exertional capacity than ALJ Paxton found and that he added the limitation of a sit/stand
option every hour. Comparison of the two decisions and review of the record evidence also
reflects that ALJ Toschi agreed with medical expert Dr. Brendemuhl’s testimony that Plaintiff’s
low-back impairment was severe; ALJ Paxton, in contrast, found Plaintiff’s complaints of lowback pain to represent a non-severe impairment.

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At the hearing, ALJ Toschi asked the VE to assume a hypothetical individual of
claimant’s age, education, and work experience and with the RFC limitations he set forth in his
decision. The VE testified that the hypothetical individual could not perform Plaintiff’s past
work, but that he could perform other jobs existing in significant numbers in the national and
local economy, including the positions of gate guard, mail clerk, and office helper. The VE
further testified that, based upon his experience, these jobs provided the sit/stand option
contemplated in the RFC.
Plaintiff’s counsel subsequently inquired whether the VE had also taken into account the
RFC limitation of no standing or walking for more than two of the eight hours. The VE
responded that he had taken that particular limitation into account. Plaintiff’s counsel further
pressed the VE about whether the mail clerk job would be consistent with a limitation of not
standing or walking for more than two hours in an eight-hour work day: “The mail clerk job,
doesn’t that person have to go around in an office and deliver mail to people? Isn’t that the
primary thing they’re doing?” (R. at 60.) The ALJ responded as follows: “No, the primary job
thing would be opening mail, processing the mail in. Most places, they open, stamp in, that kind
of thing, and that, that can all be done at sedentary.” (R. at 61.)
ALJ Toschi relied upon the VE’s testimony to conclude that significant jobs existed in
the national economy that Plaintiff could have performed through his date last insured such that
he was not disabled under the Act.
II.
When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to

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proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is
defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“‘take into account whatever in the record fairly detracts from [the] weight’” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d
270, 273 (6th Cir. 1997)). Finally, even if the ALJ’s decision meets the substantial evidence
standard, “‘a decision of the Commissioner will not be upheld where the SSA fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478
F.3d 742, 746 (6th Cir. 2007)).
III.
As discussed above, the central issue before the Court is whether ALJ Toschi’s failure to
properly apply the doctrine of res judicata in accordance with Drummond and AR 98-4(6) was

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harmless. In Drummond, the United States Court of Appeals for the Sixth Circuit held that
principles of res judicata apply to both claimants and the Commissioner in Social Security cases.
126 F.3d at 841–42. The Drummond Court specifically held that absent evidence of “changed
circumstances” relating to a claimant’s condition, “a subsequent ALJ is bound by the findings of
a previous ALJ.” Id. at 842. The Sixth Circuit further held that when an ALJ seeks to deviate
from a prior ALJ’s decision, “[t]he burden is on the Commissioner to prove changed
circumstances and therefore escape the principles of res judicata.” Id. at 843. Applying this
approach, the Drummond Court concluded that the ALJ was bound by a previous ALJ’s
determination that the claimant retained the RFC to perform sedentary work because evidence
did not indicate that the claimant’s condition had improved. Id. at 843.
Following Drummond, the Social Security Administration issued AR 98-4(6), which
provides, in pertinent part, as follows:
[W]hen adjudicating a subsequent disability claim with an unadjudicated period
arising under the same title of the Act as the prior claim, adjudicators must adopt
such a finding from the final decision by an ALJ or the Appeals Council on the prior
claim in determining whether the claimant is disabled with respect to the
unadjudicated period unless there is new and material evidence relating to such a
finding or there has been a change in the law, regulations or rulings affecting the
finding or the method for arriving at the finding.
AR 98–4(6), 1998 WL 283902, at *3 (June 1, 1998).
In this case, it is undisputed that ALJ Toschi violated Drummond and AR 98-4(6) when
he found Plaintiff capable of a higher exertional level of work (light work instead of sedentary
work) without any finding of improvement. Nor is it disputed that ALJ Toschi cannot rely upon
the positions of gate guard and office helper that the VE identified to find that significant jobs
exist that Plaintiff can perform given that both of those positions are classified as being

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performed at the light exertional level. Instead, Plaintiff argues that even eliminating these
positions, the VE’s testimony that “in ‘most places,’ the job [of mail clerk] was performed at the
sedentary exertional level,” amounts to substantial evidence that significant jobs exist that
Plaintiff can perform given the VE testimony that 206,750 and 16,000 such positions exist in the
national and regional economies, respectively. (Mem. in Opp. 4–5, ECF No. 21 (quoting R. at
60–61).)
The Court finds this argument unavailing. Certainly, ALJ’s Toschi’s error would be
harmless if the VE had, as the Commissioner suggests, testified that the DOT has incorrectly
characterized the mail clerk position as light work and that the position is actually performed at
the sedentary level. But she did not. Read in the context of the questions presented at the
hearing, the VE testified that the mail clerk position does not require a person to stand and/or
walk “to go around an office and deliver mail” for more than two out of eight hours, but instead,
in “[m]ost places,” the primary duties could be performed at the sedentary level. (R. at 60–61.)
The differences between light and sedentary work, however, consist of more than just how long a
person must be on his or her feet; it also involves the amount and frequency of lifting. See 20
C.F.R. § 404.1567. More specifically, sedentary work contemplates lifting no more than ten
pounds at a time and occasional lifting. Light work, on the other hand, could involve lifting up
to twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds.
Id. Given the lack of testimony concerning whether the lifting demands of a mail clerk are
consistent with sedentary work, the Court cannot conclude that ALJ Toschi’s error was harmless.
Cf. Wilson v. Colvin, No. EDCV 13-1409, 2014 WL 360078, at *5 (C.D. Cal. Jan. 31, 2014)
(remanding where the ALJ failed to sufficiently resolve whether the claimant could engage in

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more than occasional lifting and the VE had testified that the claimant could not perform the
representative job of mail clerk if he could only occasionally engage in the act of lifting);
Saucedo v. Astrue, No. 1:09-cv-114, 2010 WL 3835243, at *4 (N.D. Tex. Sept. 28, 2010) (VE
testified that claimant who was limited to lifting/carrying no more than ten pounds with her left
hand could not perform her past work as mail clerk because that job involved use of both arms
and lifting).
Finally, as Plaintiff points out and the Commissioner does not dispute, ALJ Toschi
cannot rely on the sedentary jobs identified in ALJ Paxton’s earlier decision because ALJ Toschi
imposed an additional sit/stand restriction based upon his finding of the additional severe
impairment of “pain of the low back.” (R. at 20.) Accordingly, the Court cannot conclude that
substantial evidence supports ALJ Toschi’s finding that jobs existed in significant numbers in
the national economy that Plaintiff could have performed prior to his date last insured.
IV.
In sum, due to the errors outlined above, Plaintiff is entitled to an order remanding this
case to the Social Security Administration pursuant to Sentence Four of 42 U.S.C. § 405(g).
Accordingly, the Commissioner of Social Security’s nondisability finding is REVERSED and
the Court REMANDS this case to the Commissioner and the ALJ under Sentence Four of §
405(g).

Date: August 29, 2014

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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