Doneff v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATION re 3 Complaint: It is RECOMMENDED that the Court REVERSE the Commissioner of Social Security's non-disability finding and REMAND this case to the Commissioner and the ALJ under Sentence Four of § 405(g) for further consideration consistent with this Report and Recommendation. Objections to R&R due by 8/7/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 7/21/2015. (mas)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

DONALD E. DONEFF,
Plaintiff,
Civil Action 2:14-cv-313
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Donald E. Doneff, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3)
for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying
his applications for social security disability insurance benefits and supplemental security
income. This matter is before the United States Magistrate Judge for a Report and
Recommendation on Plaintiff’s Statement of Errors (ECF No. 10), the Commissioner’s
Memorandum in Opposition (ECF No. 11), Plaintiff’s Reply (ECF No. 12), and the
administrative record (ECF No. 9). For the reasons that follow, it is RECOMMENDED that the
Court REVERSE the Commissioner of Social Security’s nondisability finding and REMAND
this case to the Commissioner and the ALJ under Sentence Four of § 405(g).
I.

BACKGROUND

Plaintiff filed his applications for benefits in April 2011, alleging that he has been
disabled since December 31, 2009, due to asthma, pancreatitis, and arthritis. (R. at 193-99, 20005, 262.) Plaintiff’s applications were denied initially and upon reconsideration. Plaintiff sought
a de novo hearing before an administrative law judge. Administrative Law Judge Paul Gaughen

(“ALJ”) held a video hearing on December 11, 2012, at which Plaintiff, represented by counsel,
appeared and testified. (R. at 41–52.) Sandra Steele, a vocational expert, also appeared and
testified at the hearing. On December 21, 2012, the ALJ issued a decision finding that Plaintiff
was not disabled within the meaning of the Social Security Act. (R. at 14–27.) On February 4,
2014, the Appeals Council denied Plaintiff’s request for review and adopted the ALJ’s decision
as the Commissioner’s final decision. (R. at 1–6.) Plaintiff then timely commenced the instant
action.
II.
A.

HEARING TESTIMONY

Plaintiff’s Testimony
Plaintiff testified that the highest level of education he obtained was the ninth grade. He

stated that he stopped working as a construction laborer due to pain and numbness in his leg,
which, he added, almost caused him to fall in a tank. Plaintiff said that he attempted to work
part-time delivering pizza after filing his application, but was unable to continue to do so due to
back pain. (R. at 41.)
Plaintiff testified that his back pain started in 2004 or 2005 and had worsened since then.
(Id.) He said his pain felt like someone “sticking a knife” in him. (R. at 43.) He stated that he is
in constant pain whether he sits or stands. (Id.) Plaintiff also described has leg and back pain as
throbbing and burning. Plaintiff said that steroid injections helped relieve his neck pain for oneto-two weeks, but that he was afraid to get additional shots because he was afraid of contracting
spinal meningitis. (R. at 44.) He added that he also treated his pain by doing exercises he
learned in physical therapy and with heat and a TENS unit. (Id.) Plaintiff said that the TENS
unit helps to control, but does not eliminate his pain. (R. at 45.) Plaintiff also testified that he

2

took pain medications, but that he stopped due to the side effects. He stated that he has
attempted all of the treatments that his doctors have recommended.
Plaintiff estimated that he can stand between 45 minutes and an hour at a time and can sit
for only 30 minutes at a time. (R. at 46.) He said that if he stands any longer, his leg will go
numb and start burning, aching, and throbbing. Plaintiff also lies down for about 30 minutes
about four times per day with a therapy ball under his lower back to relieve pain. (R. at 46-47.)
He said he can only lift about 15 pounds. (R. at 47.)
During a typical day, Plaintiff is able to cook for himself and do his own laundry; he said
he occasionally helps with dishes and doing half of the housework. (R. at 48.) Plaintiff testified
that he now has difficulty running the sweeper, bending over, or standing for long periods to
wash the dishes, so his girlfriend now handles those duties. (Id.) Plaintiff testified that she also
mows the grass, but that when he has done it, he needs to take several breaks, with each break
lasting 30 minutes. Plaintiff said that he can no longer enjoy his hobbies of hunting, fishing, and
walking. He stated that his pain does not, however, impact his ability to use his hands and arms
and does not prevent him from bathing, showering, and getting dressed.
B.

Vocational Expert Testimony
Sandra Steele testified as the vocational expert (“VE”) at the administrative hearing.

(R. at 52-58.) The VE testified that Plaintiff’s past relevant work included a construction
laborer, classified as heavy, semi-skilled work. (R. at 52-53.)
The ALJ proposed a series of hypotheticals regarding an individual of Plaintiff’s age,
education, work experience and with the residual functional capacity (“RFC”) that he ultimately
found for Plaintiff. The VE testified that such an individual could not perform Plaintiff’s past

3

work. (R. at 53-55.) The individual could, however, perform representative occupations such as
an assembler, with 4,800 jobs in the state of Ohio and 74,000 jobs in the national economy;
packer/packager, with 6,000 jobs in the state of Ohio and 82,000 jobs nationally; and an
inspector, with 1,900 jobs in the state of Ohio and 32,000 jobs in the national economy. (R. at
56.) The VE testified that all of these jobs still exist if the individual were further limited to light
work and to only perfunctory and routine interaction with others. (R. at 56-57.)
On cross-examination, the VE testified that if the individual needed to the ability to lie
down four times per day or at any time during an unscheduled break, it would be workpreclusive.
III.
A.

MEDICAL RECORDS1

Muskingum Valley Health Centers (Primary Care Physicians)
Plaintiff’s medical records reflect that he presented with severe low-back pain in April

2004, when he was injured while digging a ditch and lifting large quantities of dirt. (R. at 320.)
He was described to be in “marked distress.” (Id.)
When seen by Jeffrey Williams, D.O., on June 8, 2009, Plaintiff complained of low-back
pain. Dr. Williams noted that Plaintiff stated that he “felt a pop in his lower back” after jumping
out of a truck. (R. at 333.) Dr. Williams noted tenderness on Plaintiff’s left lumbar paraspinal
muscles and that his sacral iliac area was not tender. Plaintiff had numbness in the L4, L5
dermatome of his left leg. His strength was 5 out of 5 and equal bilaterally. Dr. Williams

1

In his Statement of Errors, Plaintiff does not challenge the Commissioner’s findings with
respect to his alleged mental impairments. Accordingly, the Court will focus its review of the
medical evidence on Plaintiff’s alleged exertional impairments.
4

assessed Plaintiff with low-back pain with left-leg neuropathy and instructed him to follow up
after MRI results become available. (Id.)
An MRI of Plaintiff’s lumbar spine taken on June 10, 2009, revealed mild diffuse lumbar
spondylosis, diffuse disc degeneration, and mild posterior disc bulge throughout the lumbar
spine, with suggestion of a conjoined left S1 nerve root. (R. at 328-29.)
In October 2009, Plaintiff reported to Dr. Williams that he continued to have low-back
pain and a tingling an burning sensation. He indicated that the pain medications, Flexeril and
Tramadol, were not helping. (R. at 331.) Dr. Williams assessed low-back pain and left-leg
neuropathy.
A September 12, 2011 x-ray of the lumbar spine, ordered by Roger Ward, D.O., showed
slight-to-moderate spondylosis. (R. at 323.) Plaintiff underwent an x-ray bone survey on
September 20, 2011, which showed degenerative findings in his cervical spine. (R. at 378.)
In June 2012, Plaintiff saw Dr. Ward for medication refills. Plaintiff reported
constipation from the medications. Dr. Ward noted a negative musculoskeletal examination. (R.
at 735.) In September 2012, Plaintiff again reported the side effect of severe constipation. His
physical examination was normal. (R. at 772-73.)
B.

Muskingum County Department of Job & Family Services
Plaintiff underwent an examination by Shelly Dunmayer, M.D., in June 2011.

Dr. Dunmayer noted that Plaintiff’s physical examination was mostly normal with slightly
decreased range of motion in his hips, left knee, and dorsolumbar spine. Plaintiff had full
strength in all areas and 4/5 strength in his left hip and knee muscles. Dr. Dunmayer opined that

5

Plaintiff was “limited physically by musculoskeletal issues” and that he had a “poor prognosis.”
(R. at 341-44.) She also described his health status as “deteriorating.” (R. at 341.)
C.

Michael Sayegh, M.D.
Plaintiff first reported to Dr. Sayegh, a pain management specialist, on October 13, 2011.

(R. at 425-26.) He complained of chronic pain in his neck, both arms, mid back, lower back and
left leg. He described his pain as burning and throbbing. Plaintiff rated his pain severity at a
level of 5-6 on a 0-10 visual analog scale. He reported that he had been experiencing his pain for
years, since a work injury and personal injury. He stated that he had tried numerous nonsteroidal
anti-inflammatory medications, as well as Percocet and Vicodin, but the medications were
unsuccessful in treating his pain. He reported that the physical therapy he tried in 2009
exacerbated his pain. Plaintiff also reported failed home therapies, including exercise, rest, and
walking, but added that these therapies helped while he was in physical therapy. He complained
of numbness and tingling in bilateral upper extremities, with worse symptoms on his left side
and burning pain in his left leg that eventually radiates to his right leg. Examination of
Plaintiff’s neck, and mid- and low-back area showed trigger points and tenderness bilaterally and
in his paraspinal muscles. He tested mildly positive in his left-leg raising test. Neurological
examination of Plaintiff’s lower extremities revealed mild decreased sensation in the lateral
aspect of his left lower leg. Dr. Sayegh diagnosed Plaintiff with: sprain/strain, sciatica, multiple
herniated nucleus pulposus, multiple degenerative disc disease, and moderate spondylosis. With
regards to Plaintiff’s cervical area, Dr. Sayegh also diagnosed radiculopathy and moderate
degenerative disc disease. Finally, in Plaintiff’s thoracic area, Dr. Sayegh diagnosed thoracic

6

area: sprain/strain, radiculopathy, and herniated nucleus pulposus. Dr. Sayegh prescribed pain
medication. (R. at 425-26.)
On November 11, 2011, Plaintiff presented to Dr. Sayegh with increased complaints of
pain, rating his pain severity at a level of 7 on a 0-10 visual analog scale. (R. at 427.)
Examination revealed trigger points and bilateral tenderness in Plaintiff’s paraspinal muscles. A
neurological examination showed mild decreased sensation in the lateral aspect of his left lower
leg and a mildly positive left-leg raising test. Dr. Sayegh continued Plaintiff’s pain medications.
That same day, Dr. Sayegh opined that Plaintiff should be limited to part-time light duty or
sedentary work. (R. at 421-22.) On this same form, he noted Plaintiff’s diagnoses, his medical
examination findings, that he had Plaintiff’s MRI in his records, and that Plaintiff was
responding “mildly favorably” to therapy. (Id.)
D.

Genesis Pain Management: William Chang, M.D. /Gregory Siefert, M.D.
Plaintiff was evaluated by Dr. Chang, a physical medicine and rehabilitation specialist,

on January 16, 2012. (R. at 682.) Dr. Chang found tenderness at Plaintiff’s T4-T6 spinous
process, tight upper lumbar paraspinal muscle and left lower lumbar paraspinal muscles with
mild muscle spasms, and decreased range of motion. (R. at 682-83.) He noted that bending
movements elicited pain in Plaintiff’s neck and also increased low-back pain with low-back
flexion and extension movements. Dr. Chang diagnosed persistent lower-back pain; left lowerextremity radicular neuropathic pain due to left L1-L2 lumbar radiculopathy, secondary to
foraminal stenosis and most likely a result of lumbar spondylosis; multilevel thoracolumbar disc
degenerative disease; lumbar spondylosis; mid-back pain due to thoracic sprain and facet pain
syndrome; and chronic pain disorder through central sensitization. (R. at 683.) Dr. Chang

7

prescribed pain medication and physical therapy. He further instructed Plaintiff to use a heating
pad and to begin “short duration low-impact light aerobic exercise at least daily using exercise
DVD designed for elderly people as a guide.” (R. at 683.)
A January 25, 2012 MRI of Plaintiff’s lumbar spine revealed a very small left paracentral
disc bulge at L5-S1; slight decreased disc height at L4-5; and decreased disc water content at
L2-3, L3-4, and L5-S1. (R. at 708.)
Plaintiff underwent an EMG/nerve conduction study on January 27, 2012. The
conduction study revealed a denervation potential at the left anterior tibialis, which implies
axonal damage at either peroneal nerve level or left L4-L5 nerve root level. The EMG also
showed an absence of left tibial nerve H-reflex suggestive of left S1 radiculopathy. (R. at
687-89.)
On February 22, 2012, x-rays of Plaintiff’s cervical spine showed degenerative disc
disease at C4-C5, C5-C6 with posterior spondylosis. (R. at 705.) An MRI of Plaintiff’s thoracic
spine taken that same day showed degenerative disc disease and multilevel spondylosis. (R. at
706.)
In February 2012, a physical therapist observed and reported to Dr. Chang that Plaintiff
had decreased range of motion, flexibility, and strength, as well as palpable tenderness in his
mid-to-low back, impaired joint, and biomechanical dysfunction. (R. at 770.) When reevaluated in May 2012, Plaintiff continued to show decreased muscular strength, back pain,
palpable tenderness, and dysfunction. (R. 716-17.)
In March 2012, Dr. Chang reported that Plaintiff continues to experience persistent
neuropathic pain at his left lower extremity and lower back. He noted that Plaintiff had been

8

compliant with his recommended treatment. Plaintiff rated his pain severity at a level of 9 on a
0-10 visual analog scale. He demonstrated increased low-back pain with low-back flexion, left
bending, and extension movements. (R. at 722.) Dr. Chang assessed worsening left-lower
extremity radicular neuropathic pain with clinical evidence suggesting of Left L1-L2 lumbar
radiculpathy; persistent, chronic low-back pain with MRI evidence of multi-level thoracolmbar
disc degererative disease and lumbar spondylosis; mid-back pain due to throacic sprain, facet
pain syndrom, thoracic spine spondylosis, and disc degenerative disease; and chronic pain
disorder through central sensitization. (Id.) Dr. Chang noted that Plaintiff’s sensory deficit and
weakness distribution were still consistent with T12, L1, and L2 distribution. He indicated that
the thoracic MRI and x-ray of Plaintiff’s cervical spine did not reveal any abnormality that could
adequately explain his current symptoms. He therefore noted that a possibility of left upper
lumbar plexopathy by pelvis mass needed to be considered. Dr. Chang further noted that
Plaintiff’s current narcotic pain medications combination (MS Contin and Duragesic patch)
helped to reduce the pain intensity temporarily, but that neurontin produced no beneficial effect.
(R. at 722-24.)
Plaintiff received epidural steroid injections by Gregory Siefert, M.D., in May and June
2012. (R. at 709-15.) When seen by the physician’s assistant in September 2012, she found
generalized tenderness over the lower lumbar region with limited range of motion secondary to
pain. He exhibited normal motor strength and reflexes of his lower extremities with a slight
decreased sensation over the left thigh compared to the right. (R. at 784.) Examination of
Plaintiff’s cervical spine revealed no tenderness over the right cervical facet joint with improved

9

range of motion. (R. at 785.) Plaintiff was scheduled for a repeat lumbar epidural steroid
injection at L4-5 on the left. (Id.)
E.

Bryan Bjornstad, M.D.
Plaintiff presented for a neurologic evaluation with Dr. Bjornstad, on referral from Dr.

Chang in March 2012. Plaintiff reported severe pain in his middle lumbar region. He described
the pain as a stabbing sensation which was exacerbated by standing on his feet for prolonged
period of time. Pain was relieved with a TENS unit. He described his associated symptoms as
constant burning and numbness on the anterior left thigh, present on a daily basis. He had a
normal neurological examination except for decreased light touch sensation in his left thigh. Dr.
Bjornstad diagnosed mild degenerative lumbar spine disease and left meralgia paresthetica. Dr.
Bjornstad recommended a pain subspecialty consultation and advised Plaintiff to wear loose
clothing. (R. at 733-34.) Plaintiff continued to see Dr. Bjornstad. (R. at 749-50.) On
September 27, 2017, Dr. Bjornstad noted that with the recent cervical spine injections, fentanyl,
and morphine, Plaintiff’s symptoms had resolved. (R. at 776.) Dr. Bjornstad advised Plaintiff to
gradually reduce his medication intake, to report back to his primary physician and pain
specialist, and to return as needed. (Id.)
F.

Jeffrey Lobel, M.D.
On Novermber 27, 2012, Plaintiff was evaluated by Dr. Lobel, a doctor who worked in

the same practice as Dr. Bjornstad. He complained of back and leg pain that was exacerbated
with activity. Dr. Lobel’s examination findings were essentially normal. Because he had not
failed all conservative treatment, Dr. Lobel declined to recommend surgical intervention.

10

Instead, he recommended that Plaintiff be evaluated for a spine stimulator and to continue to
receive epidural steroid injections. He also recommended a repeated EMG study. (R. at 797.)
G.

State-Agency Evaluations
On July 13, 2011, state-agency physician Edmond Gardner, M.D., reviewed the record

and assessed Plaintiff’s physical functioning capacity. Dr. Gardner opined that Plaintiff could
lift and/or carry twenty pounds occasionally and ten pounds frequently; stand and/or walk about
six hours in a workday; and sit for about six hours in a workday. (R. at 67.) He further opined
that Plaintiff could only occasionally stoop, kneel, crawl, crouch, and climb ladders, ropes, and
scaffolds. (R. at 68.) Dr. Gardner also found that Plaintiff must avoid concentrated exposure to
extreme cold, extreme heat, wetness, humidity and fumes, odors, dusts, etc. (R. at 68.) On
January 17, 2012, Eli Perencevich, D.O., reviewed Plaintiff’s records upon reconsideration and
essentially affirmed Dr. Gardner’s assessment. (R. at 95-97.) He found Plaintiff’s statements
regarding his physical allegations to be partially credible. He noted that the medical records
showed that Plaintiff had some difficulties with range of motion, but that it was mild to
moderate. (R. at 96.) Dr. Perencevich assigned Dr. Sayegh’s opinion “other weight,” stating
that it was not clear that Plaintiff would be limited beyond light exertion. (R. at 96.)
IV.

ADMINISTRATIVE DECISION

On December 21, 2012, the ALJ issued his decision. (R. at 14–27.) He found that
Plaintiff met the insured status requirements of the Social Security Act through March 31, 2014.
(R. at 19.) At step one of the sequential evaluation process, the ALJ found that Plaintiff had not

11

engaged in substantially gainful activity since his alleged onset date of December 31, 2009.2
(Id.) The ALJ found that Plaintiff had the severe impairments of severe musculoskeletal
impairment of the spine with some decreased sensation in the left lower extremity. (R. at 20.)
He concluded that Plaintiff also had the non-severe impairments of oral health and alleged mouth
cancer, depression, and anxiety disorders. (Id.) The ALJ further found that Plaintiff did not
have an impairment or combination of impairments that met or medically equaled one of the
listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 22.)
At step four of the sequential process, the ALJ set forth Plaintiff’s residual functional
capacity (“RFC”) as follows:
[Plaintiff] has the [RFC] to perform medium work as defined in 20 CFR 404.1567(c)
and 416.967(c) except [Plaintiff] requires some sit stand alternating option; can work
on his feet for no more than six hours in an eight-hour workday and for up to two
hours at one time; cannot operate foot controls with the left lower extremity; can
occasionally operate foot controls with the right lower extremity; should not work
around concentrated levels of irritants such as fumes or gasses; should not work in
2

Social Security Regulations require ALJs to resolve a disability claim through a fivestep sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a
dispositive finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d
727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and answers five
questions:
1.
2.
3.

4.
5.

Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant’s residual functional capacity, can the claimant
perform his or her past relevant work?
Considering the claimant's age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?

See 20 C.F.R. § 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
12

temperature extremes; should not be assigned work at unprotected heights or in a
dangerous industrial setting; and can learn and apply to work only new simple
instructions and procedures having from two to four steps.
(Id.) In support of his RFC determination, the ALJ stated as follows: “This decision is supported
by the opinions of the state agency medical consultants . . . .” (R. at 25.) The ALJ did not
mention Dr. Sayegh’s opinion that Plaintiff should be limited to part-time light or sedentary
work.
With regards to his credibility determination, the ALJ concluded that Plaintiff’s
medically determinable impairments could reasonably be expected to cause the alleged
symptoms, but that his statements concerning the intensity, persistence, and limiting effects of
his symptoms were not entirely credible. (R. at 23.) In connection with this determination, the
ALJ recounted Plaintiff’s testimony, the medical examination and test findings, and his extensive
treatment for back pain.
Relying on the VE’s testimony, the ALJ concluded that Plaintiff can perform jobs that
exist in significant numbers in the national economy. (R. at 26.) He therefore concluded that
Plaintiff was not disabled under the Social Security Act. (Id.)
V.

STANDARD OF REVIEW

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
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

13

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 (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)).
VI.

ANALYSIS

Plaintiff advances a number of challenges in his Statement of Errors, including
challenges to the ALJ’s step-two finding, his RFC determination, his credibility assessment, and
his failure to appoint a medical expert to testify at the administrative hearing. The Undersigned

14

finds remand is warranted because the ALJ’s RFC determination is not supported by substantial
evidence.3
A plaintiff’s RFC “is defined as the most a [plaintiff] can still do despite the physical and
mental limitations resulting from her impairments.” Poe v. Comm’r of Soc. Sec., 342 F. App’x
149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of
RFC is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e).
Nevertheless, substantial evidence must support the Commissioner’s RFC finding. Berry v.
Astrue, No. 1:09CV000411, 2010 WL 3730983, at *8 (S.D. Ohio June 18, 2010). When
considering the medical evidence and calculating the RFC, “‘ALJs must not succumb to the
temptation to play doctor and make their own independent medical findings.’” Simpson v.
Comm’r of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 F.3d
966, 970 (7th Cir. 1996)); see also Isaacs v. Astrue, No. 1:08–CV–00828, 2009 WL 3672060, at
*10 (S.D. Ohio Nov. 4, 2009) (holding that an “ALJ may not interpret raw medical data in
functional terms”) (internal quotations omitted).
An ALJ is required to explain how the evidence supports the limitations that he or she set
forth in the claimant’s RFC:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations). In assessing
RFC, the adjudicator must discuss the individual’s ability to perform sustained work
activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours
a day, for 5 days a week, or an equivalent work schedule), and describe the

3

This finding obviates the need for in-depth analysis of Plaintiff’s remaining assignments
of error. Thus, the undersigned need not, and does not, resolve the alternative bases Plaintiff
asserts support reversal and remand. Nevertheless, on remand, the ALJ may consider Plaintiff’s
remaining assignments of error if appropriate.
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maximum amount of each work-related activity the individual can perform based on
the evidence available in the case record. The adjudicator must also explain how any
material inconsistencies or ambiguities in the evidence in the case record were
considered and resolved.
S.S.R. 96–8p, 1996 WL 374184, at *6–7 (internal footnote omitted).
As set forth above, in this case, the ALJ concluded that Plaintiff retained the physical
RFC to perform medium work as contemplated in 20 C.F.R. § 404.1567(c), with additional
limits on how much he could sit and stand at one time, limits on operation of foot controls, and
some environmental limitations. The RFC contained no postural limitations on Plaintiff’s ability
to climb, stoop, kneel, or crawl. The regulations define medium work as follows:
(c) Medium work. Medium work involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds. If someone
can do medium work, we determine that he or she can also do sedentary and light
work.
20 C.F.R. § 404.1567(c).
The ALJ provided almost no discussion as to how he arrived at Plaintiff’s RFC
determination. Rather, at noted above, he simply recounted some record evidence and stated that
the decision was supported by the opinions of the state-agency medical consultants. But
contrary to the ALJ’s assertion, both state-agency medical consultants found that Plaintiff was
limited to lifting just twenty pounds occasionally and ten pounds frequently, (R. at 67, 95-97),
which is quite different than the occasional fifty-pound and frequently lifting/carrying twentyfive pounds that the ALJ contemplated under medium work. Moreover, consistent with the
notations of Plaintiff’s physicians that his pain increased with bending, flexion, and extension,
both state-agency doctors concluded that Plaintiff had postural limitations on kneeling, crawling,
crouching, and climbing ladders, ropes, and scaffolds. The ALJ, however, did not include any

16

such limitation in his RFC calculation. Notably, all of the opinions contained in the record are
more restrictive than that the ALJ set forth in his RFC determination. Yet the ALJ failed to
explain how the record evidence supported his conclusion that Plaintiff could perform medium
work without any postural limitations.
The ALJ’s lack of articulation prevents this Court from conducting meaningful review to
determine whether substantial evidence supports his decision. See Rogers 486 F.3d at 248
(quoting Hurst, 753 F.2d at 519) (“It is more than merely ‘helpful’ for the ALJ to articulate
reasons . . . for crediting or rejecting particular sources of evidence. It is absolutely essential for
meaningful appellate review.”); Reynolds v. Comm’r of Soc. Sec., No. 09–2060, 2011 WL
1228165, at *4 (6th Cir. Apr. 1, 2011) (quoting 5 U.S.C. § 557(c)(3)(A)) (noting that an ALJ’s
decision “must include a discussion of ‘findings and conclusions, and the reasons or basis
therefor, on all the material issues of fact, law, or discretion presented on the record.’”). This
Court must therefore remand this action for an explanation of the reasoning supporting the ALJ’s
RFC determinations. See, e.g., Evans v. Comm’r of Soc. Sec., No. 1:10–cv–779, 2011 WL
6960619, at *14, 16 (S.D. Ohio Dec. 5, 2011) (Report and Recommendation), adopted, 2012 WL
27476 (S.D. Ohio Jan. 5, 2012) (remanding where the Court was “unable to discern from the
ALJ’s opinion how he arrived at the RFC decision and what evidence he relied on in making that
decision,” explaining that “[s]imply listing some of the medical and other evidence contained in
the record and setting forth an RFC conclusion without linking such evidence to the functional
limitations ultimately imposed in the RFC is insufficient to meet the ‘narrative discussion’
requirement of SSR 96–8.”); Perkins v. Commissioner of Social Sec., No. 1:10-cv-233, 2011 WL
2457817, at *5–6, 9 (S.D. Ohio May 23, 2011) (Report and Recommendation), adopted, 2011

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WL 2443950 (S.D. Ohio June 16, 2011) (same); Allen v. Astrue, No. 5:11CV1095, 2012 WL
1142480, at *8 (N.D. Ohio Apr. 4, 2012) (remanding where “the ALJ failed to properly
articulate the RFC calculation,” explaining that the Court was “unable to trace the path of the
ALJ’s reasoning”); Commodore v. Astrue, No. 10-295, 2011 WL 4856162, at *4, 6 (E.D. Ky.
Oct. 13, 2011) (remanding action “with instructions to provide a more thorough written
analysis,” where the ALJ failed to articulate the reasons for his RFC findings such that the Court
could not “conduct a meaningful review of whether substantial evidence supports the ALJ’s
decision”).
To be clear, the Undersigned is not suggesting that SSR 96-8 requires a function-byfunction analysis of Plaintiff’s RFC. Nor is the Undersigned suggesting that an ALJ is required
to specifically reference every piece of evidence. Rather, the Undersigned simply concludes that
the ALJ’s decision must provide some explanation of how the record evidence supports his RFC
determination. See S.S.R. 96–8p, 1996 WL 374184, at *6–7; Perkins, 2011 WL 2457817, at *6
(“In rendering the RFC decision, it is incumbent upon the ALJ to give some indication of the
specific evidence relied upon and the findings associated with the particular RFC limitations to
enable this Court to perform a meaningful judicial review of that decision. Otherwise, the Court
is left to speculate on the method utilized and evidence relied upon by the ALJ in arriving at her
RFC determination.”).
The Commissioner, in his Memorandum in Opposition, asserts that “[t]o the extent that
this Court finds that the ALJ should have limited Plaintiff to light work, the ALJ’s error is
harmless.” (Def.’s Mem. in Opp. 10, ECF No. 11.) The Commissioner explains that a harmlesserror finding is warranted because the VE identified a significant number of jobs that Plaintiff

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could perform at the light level. But this Court cannot simply formulate a different RFC that it
finds is supported by substantial evidence. Instead, the Court must review the ALJ’s RFC
determination and rationale to determine if it is supported by substantial evidence. Regardless,
even adopting the Commissioner’s apparent proposal that the Court proceed from the
understanding that the ALJ meant to adopt the state-agency medical consultants’ findings does
not alter this Court’s conclusion given that the hypothetical posed to the VE did not contain any
of the postural limitations that the state-agency medical consultants found.
VII.

CONCLUSION

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, it is RECOMMENDED that the Court REVERSE the Commissioner of Social
Security’s non-disability finding and REMAND this case to the Commissioner and the ALJ
under Sentence Four of § 405(g) for further consideration consistent with this Report and
Recommendation.
VIII.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and

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Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
Date: July 21, 2015

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

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