Jenkins v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Michael Lee Jenkins. It is RECOMMENDED that the decision of the Commissioner be REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g) and that this action be REMANDED to the Commissioner of Social Security for further proceedings. Objections to R&R due by 7/9/2015. Signed by Magistrate Judge Norah McCann King on 6/19/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL LEE JENKINS,
Plaintiff,
vs.

Civil Action 2:14-cv-2339
Judge Marbley
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
I.

Background
This is an action instituted under the provisions of 42 U.S.C. §

405(g) for review of a final decision of the Commissioner of Social
Security denying plaintiff’s application for a period of disability
and disability insurance benefits.

This matter is before the Court

for consideration of Plaintiff’s Statement of Errors (“Statement of
Errors”), Doc. No. 11, and the Commissioner’s Memorandum in Opposition
(“Commissioner’s Response”), Doc. No. 14.
Plaintiff Michael Lee Jenkins filed his application for benefits
on February 4, 2011, alleging that he has been disabled since December
1, 2009.

PAGEID 169-77.

The claims were denied initially and upon

reconsideration, and plaintiff requested a de novo hearing before an
administrative law judge.
An administrative hearing was held on April 17, 2013, at which
plaintiff, represented by counsel, appeared and testified, as did Olen
J. Dodd, who testified as a vocational expert.

PAGEID 49, 65.

In a

decision dated June 17, 2013, the administrative law judge concluded
that plaintiff was not disabled from December 1, 2009, through the
date of the administrative decision.

PAGEID 49-60.

That decision

became the final decision of the Commissioner of Social Security when
the Appeals Council declined review on September 25, 2014.

PAGEID 34-

37.
Plaintiff was 52 years of age on the date of the administrative
decision.

See PAGEID 60, 171.

Plaintiff was last insured for

disability insurance purposes on December 31, 2014.

PAGEID 51.

Plaintiff has a limited education, is able to communicate in English,
and has past relevant work as tree trimmer helper and hand packager.
PAGEID 58.

He has not engaged in substantial gainful activity since

December 1, 2009, the alleged disability onset date.
II.

PAGEID 51.

Administrative Decision
The administrative law judge found that plaintiff’s severe

impairments consist of degenerative disc disease with spinal stenosis,
obesity, adjustment disorder, alcohol abuse, and borderline
intellectual functioning.

PAGEID 51.

The administrative law judge

also found that plaintiff’s impairments neither meet nor equal a
listed impairment and leave plaintiff with the residual functional
capacity (“RFC”) to
perform medium work as defined in 20 CFR 404.1567(c) except
he can understand, remember and carry out simple tasks; can
respond
appropriately
to
occasional
interaction
with
coworkers, supervisors, and the general public; can make
simple
work-related
decisions;
and
can
respond
appropriately to occasional changes in the work setting.
In addition, the claimant works best in an environment that
does not require reading or writing.

2

PAGEID 51-54.

Relying on the testimony of the vocational expert, the

administrative law judge found that this RFC does not preclude the
performance of plaintiff’s past relevant work as a tree trimmer helper
and hand packager.

PAGEID 58.

The administrative law judge also

relied on the testimony of the vocational expert to find,
alternatively, that plaintiff is able to perform a significant number
of jobs in the national economy, including such representative jobs as
truck washer, box bender, and mold filler.

PAGEID 58-59.

Accordingly, the administrative law judge concluded that plaintiff was
not disabled within the meaning of the Social Security Act from
December 1, 2009, through the date of the administrative decision.
PAGEID 59.
III. Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the
Commissioner’s decision is limited to determining whether the findings
of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.

Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).

Substantial evidence is 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.
See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981).

This

Court does not try the case de novo, nor does it resolve conflicts in
the evidence or questions of credibility.

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See Brainard v. Sec’y of

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this
Court must examine the administrative record as a whole.
F.2d at 536.

Kirk, 667

If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion.

Longworth, 402 F.3d at 595.

In his Statement of Errors, plaintiff first argues that the
hypothetical question posed by the administrative law judge to the
vocational expert did not accurately portray plaintiff’s moderate
limitations in maintaining concentration, persistence, or pace.
Statement of Errors, pp. 7-10.

“In order for a vocational expert's

testimony in response to a hypothetical question to serve as
substantial evidence in support of the conclusion that a claimant can
perform other work, the question must accurately portray a claimant’s
physical and mental impairments.”
F.3d 504, 516 (6th Cir. 2010).

Ealy v. Comm’r of Soc. Sec., 594

“Hypothetical questions, however, need

only incorporate those limitations which the [administrative law
judge] has accepted as credible.”

Parks v. Soc. Sec. Admin., 413 F.

App’x 856, 865 (6th Cir. 2010) (citing Casey v. Sec. of Health & Human
Servs., 987 F.2d 1230, 1235 (6th Cir. 1993).
The administrative law judge found, at steps two and three of the
sequential evaluation process, that plaintiff had moderate

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difficulties with regard to concentration, persistence, or pace.
PAGEID 52.

These limitations, as noted by the administrative law

judge, “are not a residual functional capacity assessment,” but are
nevertheless reflected in the RFC determination.

PAGEID 52-53.

The

administrative law judge then found that plaintiff has the RFC to
perform medium work as defined in 20 CFR 404.1567(c) except
he can understand, remember and carry out simple tasks; can
respond
appropriately
to
occasional
interaction
with
coworkers, supervisors, and the general public; can make
simple
work-related
decisions;
and
can
respond
appropriately to occasional changes in the work setting.
In addition, the claimant works best in an environment that
does not require reading or writing.
PAGEID 51-54.

The administrative law judge asked the vocational

expert to assume a claimant with plaintiff’s vocational profile who is
limited to
lift[ing] 50 pounds occasionally, 25 pounds frequently, can
stand and walk six hours in an eight hour day.
This
individual can understand, remember and carry out simple
tasks, can respond appropriately to occasional interaction
with coworkers, supervisors and the general public, can
make
simple
work
related
decisions
and
respond
appropriately to occasional changes in the work setting.
The individual works fast1 in an environment that does not
require reading and writing.
PAGEID 79.

The vocational expert responded that such a claimant could

perform plaintiff’s past relevant work as a tree trimmer helper and
packager.

Id.

Plaintiff argues that the hypothetical posed to the vocational
expert is deficient because it did not include the moderate limitation

1

The Commissioner argues that the reference to “works fast” is a “scrivener’s
error” and that the word “fast” should have been “best.” Commissioner’s
Response, p. 4. Plaintiff’s Statement of Errors does not take issue with
this portion of the hypothetical question posed to the vocational expert.

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in concentration, persistence, and pace found by the administrative
law judge.

Statement of Errors, pp. 7-10.

Referring to Ealy, 594

F.3d 504, plaintiff specifically argues that the limitations found by
the administrative law judge in the RFC determination and posed in the
hypothetical question to the vocational expert do not include
limitations for pace or speed.

Statement of Errors, pp. 7-10.

In

this regard, plaintiff notes that the administrative law judge
assigned “great weight” to the opinion of Joseph W. Edwards, Ph.D, who
opined that plaintiff cannot work in a fast-paced work environment,
see PAGEID 57, but failed to include such a limitation in her
hypothetical question to the vocational expert.

Statement of Errors

at pp. 8-9.
As discussed supra, a vocational expert’s testimony in response
to a hypothetical question can serve as substantial evidence only if
the question accurately portrays the claimant’s physical and mental
impairments.

Ealy, 594 F.3d at 516.

In Ealy, the administrative law

judge “relied on the vocational expert’s testimony in response to a
hypothetical question that stated, in relevant part, ‘assume this
person is limited to simple, repetitive tasks and instructions in nonpublic work settings.’”

Id. at 517.

The administrative law judge had

expressly found that the plaintiff could work for two-hour segments
and that speed of performance could not be critical to his job, but
had failed to include that limitation in the hypothetical posed to the
vocational expert.

Id. at 516.

The United States Court of Appeals

for the Sixth Circuit remanded the case because the hypothetical

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failed to adequately describe the claimant’s moderate difficulties
with regard to concentration, persistence or pace.

See id. (citing

Edwards v. Barnhart, 383 F. Supp. 2d 920, 930-31 (E.D. Mich. 2005)
(finding that a hypothetical limiting the claimant to “jobs entailing
no more than simple, routine, unskilled work” is not adequate to
convey a moderate limitation in ability to concentrate, persist, and
keep pace) (“Plaintiff may be unable to meet quotas, stay alert, or
work at a consistent pace, even at a simple, unskilled, routine
job.”); Whack v. Comm’r of Soc. Sec., No. 06-4917, 2008 U.S. Dist.
LEXIS 14083, at *8 (E.D. Pa. Feb. 26, 2008) (citing cases for the
proposition that hypothetical restrictions of “simple” or “low-stress”
work do not sufficiently incorporate the claimant’s medically
established limitations where the claimant has moderate deficiencies
in concentration, persistence, or pace)).
The Court notes, initially, that “several post-Ealy decisions
declined to adopt a bright line rule that a limitation to ‘simple
repetitive tasks’ in an RFC and hypothetical to the VE is not adequate
to address a claimant's moderate impairment as to concentration,
persistence, and pace.”

Horsley v. Comm’r of Soc. Sec., No. 1:11-CV-

703, 2013 WL 55637, at *8 (S.D. Ohio Jan. 3, 2013) report and
recommendation adopted Horsley v. Comm'r of Soc. Sec., No. 1:11-CV703, 2013 WL 980315 (S.D. Ohio Mar. 13, 2013)).

However, it is

significant that the administrative law judge in this case did not
limit plaintiff to “simple repetitive tasks;” rather, the
administrative law judge limited plaintiff to performing “simple

7

tasks.”

PAGEID 53.

As the Sixth Circuit noted in Ealy, hypothetical

restrictions to “simple” work may not sufficiently incorporate a
claimant’s medically established limitations where, as here, the
claimant has moderate deficiencies in concentration, persistence, or
pace.

Ealy, 594 F.3d at 516-17 (citing Whack, 2008 U.S. Dist. LEXIS

14083 at *8).
The Commissioner notes plaintiff’s argument “that the ALJ should
have included a limitation regarding ‘fast-paced work,” and responds
by simply stating that “[t]he ALJ did include such limitations in his
controlling hypothetical to the VE (Tr. 46).”
Response, p. 5.

This is simply not so.2

Commissioner’s

Neither the administrative

law judge’s RFC determination nor her hypothetical question posed to
the vocational expert contains a limitation to pace, let alone
regarding “fast-paced work.”

See PAGEID 53-54, 79.

This is

significant because, although the administrative law judge assigned
“great weight” to Dr. Edwards’ medical opinion “that the claimant
cannot work in a fast-paced work environment,” PAGEID 57, she failed
to include such a limitation in the RFC determination and hypothetical
question to the vocational expert.

The administrative law judge

2

The only hypothetical appearing on “Tr. 46” reads as follows: “[C]onsider an
individual with the claimant’s age, education and work history. This
individual can lift 50 pounds occasionally, 25 pounds frequently, can stand
and walk six hours in an eight hour day. This individual can understand,
remember and carry out simple tasks, can respond appropriately to occasional
interaction with coworkers, supervisors and the general public, can make
simple work related decisions and respond appropriately to occasional changes
in the work setting. The individual works fast [sic] in an environment that
does not require reading and writing.” This is, as noted, the RFC ultimately
found by the administrative law judge.

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offered no explanation for failing to include this limitation in
plaintiff’s RFC determination.
In short, the administrative law judge expressly found that
plaintiff is moderately impaired in the areas of concentration,
persistence, or pace, and assigned great weight to a medical opinion
that plaintiff “cannot work in a fast-paced work environment,” yet
failed to adequately address that limitation in her RFC assessment.
The hypothetical posed to the vocational expert, and upon whose
testimony the administrative law judge relied, did not fairly include
all of the limitations actually found by the administrative law judge.
Under these circumstances, it cannot be said that the decision of the
administrative law judge is supported by substantial evidence.
It is therefore RECOMMENDED that the decision of the Commissioner
be REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g) and that this
action be REMANDED to the Commissioner of Social Security for further
proceedings consistent with the foregoing.
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
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

9

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

June 19, 2015

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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