Frazier v. Commissioner of Social Security Administration

Filing 18

ORDER ACCEPTING REPORT AND RECOMMENDATIONS; OVERRULING the Commissioner's objection. REVERSING the Commissioners finding of non-disability. This case is REMANDED to the Commissioner and ALJ under Sentence Four of §405(g) for further consideration. Signed by Judge Algenon L. Marbley on 6/4/2019. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEVEN D. FRAZIER,
Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Case No. 2:18-cv-200
JUDGE ALGENON L. MARBLEY
Magistrate Judge Deavers

OPINION & ORDER
This matter comes before the Court on the Magistrate Judge’s January 31, 2018 Report
and Recommendation (ECF No. 15) which recommended that this Court overrule the
Commissioner’s finding of non-disability and remand the case for further consideration. The
Defendant has filed an objection. (ECF No. 16). Based upon an independent review of the Report
and Recommendation, and for the reasons set forth below, the Commissioner’s objection is
OVERRULED. This Court hereby ACCEPTS the Magistrate Judge’s Report and
Recommendations. This matter is REMANDED for further proceedings.
I. BACKGROUND
A. Plaintiff’s Disability Case
Plaintiff filed his application for disability insurance benefits on April 1, 2015, alleging
that he has been disabled since November 24, 2014. (R. at 209–15.) Plaintiff’s applications were
denied initially and upon reconsideration. (R. at 123–31, 134–40.) Plaintiff sought a de novo
hearing before an administrative law judge. (R. at 141–22.) Administrative Law Judge Thomas
L. Wang (“ALJ”) held a hearing on July 14, 2017, at which Plaintiff, who was represented by
counsel, appeared and testified. (R. at 33–68.) On August 23, 2017, the ALJ issued a decision
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finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 11–
27). On February 9, 2018, the Appeals Council denied Plaintiff’s request for review and adopted
the ALJ’s decision as the Commissioner’s final decision. (R. at 1–7).
B. The Administrative Decision
The ALJ issued his decision on August 23, 2017. (R. at 11–27). In reaching his
decision, the ALJ conducted the required five-step analysis.1At step one of the sequential
evaluation process, the ALJ found that Plaintiff met the insured status requirements through
December 31, 2019, and that he had not engaged in substantial gainful activity since his
alleged onset date of November 24, 2014. (R. at 13).
At step two, the ALJ determined that Plaintiff had the following severe impairments:
diabetes and peripheral neuropathy; hearing loss; status post left hand burns; chronic

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The five sequential steps are as follows:
(i) At the first step, we consider your work activity, if any. If you are doing substantial
gainful activity, we will find that you are not disabled. . . .
(ii) At the second step, we consider the medical severity of your impairment(s). If you do
not have a severe medically determinable physical or mental impairment that meets the
duration requirement in § 416.909, or a combination of impairments that is severe and
meets the duration requirement, we will find that you are not disabled. . . .
(iii) At the third step, we also consider the medical severity of your impairment(s). If you
have an impairment(s) that meets or equals one of our listings in appendix 1 to subpart P
of part 404 of this chapter and meets the duration requirement, we will find that you are
disabled. . . .
(iv) At the fourth step, we consider our assessment of your residual functional capacity and
your past relevant work. If you can still do your past relevant work, we will find that you
are not disabled. . . .
(v) At the fifth and last step, we consider our assessment of your residual functional
capacity and your age, education, and work experience to see if you can make an
adjustment to other work. If you can make an adjustment to other work, we will find that
you are not disabled. If you cannot make an adjustment to other work, we will find that
you are disabled. . . .

20 C.F.R. § 416.920(a)(4).

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obstructive pulmonary disease; obesity; depressive disorder not otherwise specified; anxiety
disorder not otherwise specified; bipolar II disorder; posttraumatic stress disorder; and
delusional disorder, persecutory type. (R. at 14).
The ALJ next found that, through the date last insured, 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 14–17).
At step four of the sequential process, the ALJ set forth Plaintiff’s residual functional
capacity (“RFC”) as follows:
After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except frequent foot control operation; no
climbing ladders, ropes, or scaffolds; occasional climbing ramps or stairs,
balancing, stooping, kneeling, crouching and crawling; handling with the left is
limited to frequent and unlimited with the right; he must be allowed to prop his
feet up during breaks; only occasional work in environments where the
temperatures are less than 40 degrees Fahrenheit; only occasional work in
environments where temperatures are more than 80 degrees Fahrenheit; only
occasional exposure to humidity; occasional exposure to loud noise as
defined by the SCO as code 4; occasional exposure to irritants such as
fumes, odors, dusts, and gases; and only occasional use of hazardous
machinery; and occasional exposure to unprotected heights; goal based
production/work measured by end result not pace work; work is limited to
simple routine and repetitive tasks; work allowed off task 5 percent of the day;
work in a low stress job defined as only occasional changes in the work setting;
no interaction with the public; and limited to occasional interaction with
coworkers and supervisors.

The ALJ further stated Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in the record for the reasons
explained in this decision.” (R. at 19). The ALJ went on to state as follows:
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The claimant has also alleged the inability to work due to hearing loss. However,
the record again does not support his allegations and testimony with respect to this
condition. An April 30, 2015 evaluation at Clarity Hearing Audiology revealed a
bilateral sloping sensorineural hearing loss. However, his word recognition was
noted as 88 percent in a quiet room whit [sic] a 75 decibel presentation level. His
evaluating audiologist recommended binaural hearing aids and annual
hearing evaluations (Exhibit 14F). While one consultative psychologist noted
sitting closer to the claimant and speaking a bit louder after the claimant
reported a hearing problem (Exhibit 9F/5), there is nothing in the record
showing that any treating or evaluating source observed any appreciable hearing
difficulty (see generally Exhibits 6F-14F). Moreover, the claimant did not
exhibit any difficulty at the hearing as he responded to questions without any
appreciable problem, and did not require any clarification or repetition due to
his hearing loss during the hearing. Given the foregoing, the undersigned
finds the limitation of only occasional exposure to loud noise as defined by the
SCO as code 4 adequately accommodates the claimant’s hearing loss.

(R. at 20).

The ALJ concluded that Plaintiff is incapable of performing his past relevant work.
(R. at 25–26). However, the ALJ found that Plaintiff is capable of performing other jobs
existing in significant numbers in the national economy, pointing to the testimony of the
Vocational Expert. (R. at 26–27). He therefore concluded that Plaintiff was not disabled
under the Social Security Act. (R. at 27).
C. The Report & Recommendation
In the Report and Recommendation, the Magistrate Judge recommended that the
Court reverse the Commissioner’s non-disability finding and that the case be remanded.
(ECF No. 15 at 1). The Magistrate Judge based this recommendation on the fact that the
ALJ’s assessment of Plaintiff’s RFC is both inconsistent with record evidence and not
an assessment that affords the ability of proper review. (Id. at 9). To demonstrate
inconsistencies with the record, the Magistrate Judge pointed to determinations made by
the ALJ regarding Plaintiff’s hearing loss that were in plain conflict with the evidence
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provided. (Id. at 9). The Magistrate Judge then noted her inability to properly review the
decision because of the ALJ’s lack of articulated reasoning to support the RFC decision.
(Id. at 11). The Magistrate Judge concluded that due to the ALJ’s lack of articulated
reasoning, judicial review could only be done by speculation. (Id. at 13). However,
speculation is impermissible, and in such a situation, the Commissioner’s decision
should be reversed, and the case remanded for further consideration. (Id. at 13-14).
II. STANDARD OF REVIEW
Upon objection to a Magistrate Judge’s report and recommendation, this Court must
“make a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see Fed. R. Civ. P. 72(b).
This de novo review, in turn, requires the Court to “determine whether the record as a whole
contains substantial evidence to support the ALJ’s decision” and to “determine whether the ALJ
applied the correct legal criteria.” Inman v. Astrue, 920 F. Supp. 2d 861, 863 (S.D. Ohio 2013).
Substantial evidence means relevant evidence that “a reasonable mind might accept as adequate
to support a conclusion.” Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010)
(quotation omitted). Substantial evidence is “more than a mere scintilla, but only so much as
would be required to prevent judgment as a matter of law against the Commissioner if this case
were being tried to a jury.” Inman, 920 F. Supp. 2d at 863 (citing Foster v. Bowen, 853 F.2d
483, 486 (6th Cir. 1988)); see also Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007) (substantial evidence is “more than a scintilla of evidence but less than a preponderance”)
(quotations omitted). 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 the
opposite conclusion.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quotation omitted).

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III. ANALYSIS
Defendant objects to the Magistrate Judge’s recommendation of reversal and remand
because the record shows no reversible error. (ECF No. 16 at 1). Defendant states three
objections to the Court’s Report and Recommendation. First, that Plaintiff did not meet the
burden of demonstrating his RFC. (Id.). Second, Plaintiff did not show that his impairment was
work-preclusive. (Id. at 2). Third, Plaintiff has not shown that his impairment warranted a greater
limitation than that recommended by the ALJ. (Id.). Defendant also argues that cases on point
would have precluded the court from reversing and remanding even after finding reversible error
by the ALJ because the testimony of the vocational expert renders any error harmless. (Id. at 3).
In response, Plaintiff agrees with the reasoning displayed by the Court and refers to
passages from the Report and Recommendation that refute the arguments made by Defendant.
(ECF No. 17).
The Magistrate Judge correctly notes that an ALJ is required to explain how the evidence
supports the limitations that he or she outlined in the claiman’s RFC. (ECF No. 15 at 9). In the
present case, the ALJ is required to explain how, with reasoning, Plaintiff’s hearing loss still
enables him to engage in work-related activities. The ALJ must include “a discussion of the
findings and conclusions, and the reasons or basis therefor…” Reynolds v. Comm’r of Soc. Sec.,
424 Fed. Appx. 411, 415 (6th Cir. 2011) (unpublished) (quoting 5 U.S.C. §557(c)(3)(A)). The
Reynolds court further emphasized that the “reasons requirement is both a procedural and
substantive requirement, necessary in order to facilitate effecting and meaningful judicial
review.” Id.
In the present case, the ALJ points to test results, the opinion of a psychologist, and
observations of Plaintiff’s behavior during the hearing to conclude that “the

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limitation…adequately accommodates Plaintiff’s hearing loss.” Id. There is, however, no
discussion of how the limitation would still allow Plaintiff to participate in work-related
activities. Given there is also no indication of what evidence was used to reach that
determination, the Magistrate Judge was unable to properly evaluate the adequacy of the
accommodation. The ALJ listed some of the evidence available and stated a conclusion with
insufficient reasoning to link the two. Such conclusory determinations have previously been
found to be insufficient. Evans v. Comm’r of Soc. Sec., No. 1:10CV779, 2012 WL 27476, at *1
(S.D. Ohio Jan. 5, 2012) (adopting report and recommendation, 2011 WL 6960619, at *4 (S.D.
Ohio Dec. 5, 2011)). Without this reasoning, this Court is unable to conduct a meaningful review
of the ALJ’s decision. As in Reynolds, when the record lacks an explanation of the reasoning
behind the ALJ's decision, the Court must remand the case due to an inability to conduct a
meaningful review. See e.g., Reynolds at 416.
Before the Magistrate Judge and again in their objections, Defendant again points to the
testimony of the Vocational Expert to indicate that the lack of demonstrated reasoning by the
ALJ was nothing more than harmless error. (ECF No. 16 at 3). The testimony by the Vocational
Expert indicated that Plaintiff’s RFC did not preclude him from some employment options. (R. at
60-65). But the court may not “fill in the gap where the ALJ did not provide the factual basis” for
review. Harvey v. Comm’r of Social Security, 2017 WL 4216585 at *8 (6th Cir. 2017)
(unreported).
IV. CONCLUSION
For these reasons, the Court ACCEPTS the Magistrate Judge’s Report and
Recommendation (ECF No. 15), thereby OVERRULING the Commissioner’s objections.
(ECF No. 26). The Commissioner’s finding of non-disability is REVERSED, and this case is

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REMANDED to the Commissioner and ALJ under Sentence Four of §405(g) for further
consideration consistent with this Opinion and Order.

IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE

DATED: June 4, 2019

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