Johnson v. Commissioner of Social Security

Filing 13

OPINION and ORDER adopting 10 the Report and Recommendation. Signed by Judge Michael H. Watson on 9/24/2024. (jk)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Robert J.,

Plaintiff,

Case No. 2:23-cv-2469

V.

Judge Michael H. Watson

Commissioner of Social Security,

Magistrate Judge Gentry

Defendant.

OPINION AND ORDER
Plaintiff filed for Supplemental Security Income on November 13, 2017. Tr.

447, ECF No. 7-5 at PAGEID # 476. His application was rejected initially and on
reconsideration. Tr. 169, ECF No. 7-3 at PAGEID # 195; Tr. 186, ECF No. 7-3 at
PAGEID # 212. After holding a hearing, the Administrative Law Judge ("ALJ")
issued a non-disability decision. Tr. 32-46, ECF No. 7-2 at PAGEID # 57-71.
The Appeals Council denied review, Tr. 1-4, ECF No. 7-2 at PAGEID # 26-29,
making the ALJ's decision the final decision of the Commissioner of Social

Security ("Commissioner"). Plaintiff sued here. Compl., ECF No. 1-2.
The Magistrate Judge issued a Report and Recommendation ("R&R"),
recommending the Court overrule Plaintiff's Statement of Specific Errors and
affirm the Commissioner's non-disability finding. R&R, ECF No. 10. Plaintiff
timely objects. Obj., ECF No. 11.

Pursuant to Federal Rule of Civil Procedure 72(b), the Court reviews de
novo those portions of the R&R that Plaintiff properly objected to. Fed. R. Civ. P.

72(b).
Plaintiff lodges one objection: the ALJ found the state agency consultants'
opinions persuasive but failed to incorporate their opinion that Plaintiff be limited

to working in nonpublic settings. Obj., ECF No. 11. Plaintiff acknowledges that
the ALJ limited him to "no interaction with the general public, " but he contends
that "no interaction with the general public" is not the functional equivalent of a

"nonpublic work setting. " Id. Rather, he contends, a "nonpublic work setting"
means "a work setting free of the general public" (as opposed to one in which he
does not interact with the general public). Id. at 5.
To begin, Plaintiff's objection is based on a false premise. The state
agency consultants did not opine that Plaintiff should be limited to "a nonpublic
work setting, " as Plaintiff repeatedly asserts in his objection. In fact, the phrase
"nonpublic work setting" appears nowhere in their opinions. Rather, the phrase

used by the state agency consultants is simply "nonpublic setting. " Tr. 168, ECF

No. 7-3 at PAGEID # 194; Tr. 183, ECF No. 7-3 at PAGEID # 209. And, the
consultants do not opine that Plaintiff should be limited to working only in a nonpublic setting; they opine that his contact with coworkers and supervisors should
be both occasional and in a nonpublic setting. Id. (opining Plaintiff can "[t]olerate

occasional (up to 1/3 of the time) contact with coworkers and supervisors in
nonpublic settings[. ]").
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Indeed, the opinion that Plaintiff can "[tjolerate occasional.. . contact with
coworkers and supervisors in nonpublic settings" is simply the consultants'
narrative explanation of their opinions on Plaintiff's social interaction limitations.
That is, as to Plaintiff's social interaction limitations, the consultants opined

Plaintiff was markedly limited in his ability to appropriately interact with the
general public, moderately limited in his abilities to accept instructions, respond
appropriately to criticism from supervisors, and get along with coworkers/peers

without distracting them or exhibiting behavioral extremes, and not significantly
limited in his abilities to ask simple questions, request assistance, maintain
socially appropriate behavior, or adhere to basic standards of neatness and

cleanliness. Tr. 167, ECF No. 7-3 at PAGEID # 193; Tr. 183, ECF No. 7-3 at
PAGEID # 209. When asked to explain those social interaction limitations in

narrative form, the consultants opined, in pertinent part, that Plaintiff could
"[t]olerate occasional (up to 1/3 of the time) contact with coworkers and
supervisors in nonpublic settings[. ]" Tr. 168, ECF No. 7-3 at PAGEID # 194; Tr

183, EOF No. 7-3 at PAGEID # 209.
In the residual functional capacity ("RFC"), theALJ stated Plaintiff could
"occasionally interact with supervisors, and coworkers but can have no
interaction with the general public. " Tr. 37, ECF No. 7-2 at PAGEID 62. The RFC
limiting Plaintiff to no interaction with the general public incorporates the

consultants' opinion that Plaintiff is markedly limited in his ability to appropriately
interact with the general public. And the RFC limitation to only occasional
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contact with coworkers and supervisors incorporates the consultants' opinion that

Plaintiff is moderately limited in his ability to accept instructions, respond
appropriately to criticism from supervisors, and get along with coworkers and
peers without distracting them.
Accordingly, because the consultants did not opine that Plaintiff could work
only in a nonpublic setting, which is the basis of Plaintiff's objection, the same is

OVERRULED.
Alternatively, even assuming the consultants limited Plaintiff to working in a

"nonpublic setting, " Plaintiff cites nothing for the proposition that "nonpublic
setting" means only a "work setting free of the general public" such that the RFC
is not supported by substantial evidence. The consultants' opinions do not define
"nonpublic setting" so narrowly, and Plaintiff provides no caselaw so defining the
term.

To the contrary, courts in this district have concluded that an RFC limiting a
plaintiff's interaction with the public adequately incorporates opinions on the
plaintiff's need to work in a nonpublic setting. Good v. Comm'r ofSoc. See., No.

2:20-cv-3781, 2021 WL 4771262, at*6 (S. D. Ohio Oct. 13, 2021) (concluding an
RFC that the plaintiff "should avoid interactions with the public ... properly
incorporates the State agency psychologists' opinions that [the plaintiff] requires
a separate work area in a non-public setting. " (internal quotation marks omitted)),
adopted by 202^ WL 6134169; Slaughter v. Comm'rofSoc. See., No. 2:19-cv-

4867, 2020 WL 2988468, at *8 (S. D. Ohio June 4, 2020) (concluding that, even if
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theALJ had adopted a specific opinion in full, an RFC precluding interaction with
the general public and occasional interaction with supervisors and co-workers

adequately accounted for the opined limitation of working in a "solitary/nonpublic

work setting"), adopted by 2021 WL 1102617.
Plaintiff's terse rejection of this caselaw is unpersuasive as he fails to

recognize that Slaughter involved an alternative conclusion, and he simply
disagrees with Good. Obj. at 3, ECF No. 11 ("In Slaughter, the Court held that
the ALJ had adequately explained why there was a deviation from the state
agency psychologists' opinion. "); id. ("The Court's declaration in Good was
inconsistent with the plain language reading of the opinion . ... "). Caselaw
supports the R&R's conclusion that the RFC here fully incorporated the
consultants' opinion.

Last, and finally, even when an ALJ finds opinions to be persuasive, the
ALJ need not adopt every aspect of those opinions. Reeves v. Comm'r ofSoc.

See., 618 F. App'x 267, 275 (6th Cir. 2015) (citation omitted). Thus, even /'fthe
consultants opined that Plaintiff were limited to working in nonpublic settings, and

even /fthat opinion were not adopted by the RFC's limitation to no interaction
with the general public and occasional interactions with coworkers and

supervisors, 1 theALJ's rejection of that portion of the opinion is not reversible
error so long as it is supported by substantial evidence, which it is here.

1 Cf. Collins v. Comm'rofSoc. See., No. 2:17-cv-1028, 2019 WL 1512539, at *5(S. D.
OhioApr. 8, 2019) (concluding limitation to "only occasional interaction with the public,
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The ALJ noted throughout his decision that Plaintiff was "able to use public

transportation and go out alone, which requires some ability to interact
appropriately in public. " Tr. 36, ECF No. 7-2 at PAGEID # 61. TheALJ further
noted that Plaintiff's prior requirement to attend "a whole lot of classes for his
rehabilitation program [suggested] some ability to tolerate" others. Id. Further,
the ALJ quoted Plaintiff's friend as stating that Plaintiff "followed instructions from
authority figures[. ]" Id. The ALJ also recited Plaintiff's 2020 self-report that he

could "go out in public and does well but other times it is very difficult, " Tr. 43-44,
ECF No. 7-2 at PAGEID # 68-69, and noted that Plaintiff was repeatedly
cooperative and friendly during examinations, even when he was not medically
compliant. Tr. 45, ECF No. 7-2 at PAGEID # 70. This constitutes substantial

evidence supporting a limitation from interacting with the general public but not
requiring complete isolation from the general public.

For each of the above reasons, Plaintiff's objections are OVERRULED.
The Court ADOPTS the R&R, OVERRULES Plaintiff's Statement of Specific
Errors, and AFFIRMS the Commissioner's non-disability finding. The Clerk shall
enter judgment for the Commissioner and close this case.

IT IS SO ORDERED.
/ '
M HAEL H. ATSON, JUDGE
UNITED STATES DISTRICT COURT

co-workers, and supervisors" is not equivalent to "a non-public setting with no close
over-the-shoulder supervision"), adopted by 20^9 WL 1858823.
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