Mccabe v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATION that plaintiff's statement of errors (Doc. 9 ) be OVERRULED in part and SUSTAINED in part as explained herein; and the Commissionier's non-disability finding be REVERSED AND REMANDED FOR FURTHER PROCEEDINGS consistent with this decision. Objections to R&R due by 5/22/2024. Signed by Magistrate Judge Karen L. Litkovitz on 5/8/2024. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BRIAN M., 1
Plaintiff,

Case No. 2:23-cv-2649
Watson, J.
Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND
RECOMMENDATION

Plaintiff, Brian M., brings this action under 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner of Social Security (Commissioner) denying plaintiff’s
application for Supplemental Security Income (SSI). 2 This matter is before the Court on plaintiff’s
statement of errors (Doc. 9), the Commissioner’s response (Doc. 11), and plaintiff’s reply (Doc.
12).
I. Procedural Background
Plaintiff protectively filed his application for SSI in October 2019, alleging disability
beginning April 18, 1985 due to an anxiety disorder, agoraphobia, and social phobia. (Tr. 16,
227-33, 252). The application was denied initially and on reconsideration. Plaintiff, through
counsel, requested and was granted a de novo hearing before administrative law judge (ALJ)
Kimberly S. Cromer. Plaintiff and a vocational expert (VE) appeared by telephone and testified
at the ALJ hearing on July 7, 2022. (Tr. 35-76). On August 29, 2022, the ALJ issued a decision

Pursuant to General Order 22-01, due to significant privacy concerns in social security cases, any opinion, order,
judgment, or other disposition in social security cases in the Southern District of Ohio shall refer to plaintiffs only by
their first names and last initials.
2
Plaintiff withdrew a concurrently filed application for Child Disability Benefits under Title II. (Tr. 17, 307).
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denying plaintiff’s SSI application. (Tr. 13-34). On June 22, 2023, the Appeals Council denied
review, and the ALJ’s decision became the final decision of the Commissioner. (Tr. 1-7).
II. Analysis
A. Legal Framework for Disability Determinations
To qualify for SSI, a claimant must suffer from a medically determinable physical or
mental impairment that can be expected to result in death or that has lasted or can be expected to
last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A). The
impairment must render the claimant unable to engage in the work previously performed or in any
other substantial gainful employment that exists in the national economy. 42 U.S.C. §
1382c(a)(3)(B).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:
1) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment – i.e., an impairment that significantly limits his or her physical
or mental ability to do basic work activities – the claimant is not disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant’s impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant is
disabled.
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§
416.920(a)(4)(i)-(v), 416.920 (b)-(g)). The claimant has the burden of proof at the first four steps
of the sequential evaluation process. Id.; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th
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Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to perform
the relevant previous employment, the burden shifts to the Commissioner to show that the
claimant can perform other substantial gainful employment and that such employment exists in
the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir.
1999).
B. The Administrative Law Judge’s Findings
The ALJ applied the sequential evaluation process and made the following findings of fact
and conclusions of law:
1. [Plaintiff] has not engaged in substantial gainful activity since April 18, 1985,
the alleged onset date (20 CFR 416.971 et seq.).
2. [Plaintiff] has the following severe impairments: Anxiety, Depression, Autistic
disorder, PTSD, and morbid obesity (20 CFR . . . 416.920(c)).
3. [Plaintiff] does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR . . . 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the [ALJ] finds that [plaintiff]
has the residual functional capacity to perform sedentary work as defined in 20
CFR 416.967(a) except he can occasionally climb ramps or stairs, but should not
climb ladders, ropes, or scaffolds. He can occasionally balance, stoop, crouch,
kneel, and crawl. He should not work at unprotected heights or around hazardous
machinery. He should not perform commercial driving. He should avoid
concentrated exposure to vibration. [Plaintiff] can perform simple routine tasks
that involve only occasional decision-making and occasional changes in the work
setting. [Plaintiff] should not have face-to-face interaction with the general public
but can have telephone or computer online interaction. He can occasionally
interact with coworkers and supervisors. He should not perform tandem tasks.
[Plaintiff] cannot perform fast-paced production work such as assembly-line work
or work where the machine sets the pace, but rather can perform work that is of a
variable rate. There should be no strict production goals or hourly requirements,
only end of the day work goals.
5. [Plaintiff] has no past relevant work (20 CFR 416.965).

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6. [Plaintiff] was born [in] . . . 1974 and was 46 years old, which is defined as a
younger individual age 18-44, on the date of the protective filing date of the Title
16 claim (20 CFR 416.963).
7. [Plaintiff] has at least a high school education (20 CFR 416.964).
8. Transferability of job skills is not an issue because [plaintiff] does not have past
relevant work (20 CFR 416.968).
9. Considering [plaintiff]’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that [plaintiff] can perform (20 CFR 416.969 and 416.969(a)). 3
10. [Plaintiff] has not been under a disability, as defined in the Social Security
Act, from April 18, 1985, through the date of this decision (20 CFR 416.920(g)).
(Tr. 19-28).
C. Judicial Standard of Review
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007).
The Commissioner’s findings must stand if they are supported by “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, ___
U.S. ___, 139 S. Ct. 1148, 1154 (2019) (citing Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229
(1938)). Substantial evidence consists of “more than a scintilla of evidence but less than a
preponderance. . . .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In

Relying on the VE’s testimony, the ALJ found that plaintiff would be able to perform the requirements of
representative sedentary, unskilled occupations such as document preparer (17,000 jobs in the national economy); sorter
(9,000 jobs in the national economy); and assembler (22,000 jobs in the national economy). (Tr. 28, 70).

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deciding whether the Commissioner’s findings are supported by substantial evidence, the Court
considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ’s conclusion that the
plaintiff is not disabled, “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, 478 F.3d at 746).
D. Specific Errors
Plaintiff raises a single assignment of error: the ALJ purported to adopt the opinions of the
state agency psychological consultants but then failed to explain why she omitted certain of their
restrictions from his residual functional capacity (RFC) determination. 4 The Court lays out the
relevant administrative background before analyzing the particular restrictions at issue.
1. The state agency consultants’ opinions and the ALJ’s decision
State agency psychological consultant Ellen Gara, Ph.D., 5 reviewed plaintiff’s file at the
initial level. (Tr. 92-105). Regarding the paragraph “B” criteria for the listings, Dr. Gara opined
that plaintiff was mildly limited in his ability to understand, remember, or apply information and
moderately limited in his ability to interact with others; concentrate, persist, or maintain pace; and
adapt or manage oneself. (Tr. 97). Dr. Gara opined that plaintiff was limited in his ability to
concentrate and focus due to anxiety but could still carry out 1-4-step tasks independently. (Tr.

Plaintiff’s specific error pertains only to the ALJ’s mental RFC determination. Any argument related to the ALJ’s
physical RFC determination is deemed waived. See Watts v. Comm’r of Soc. Sec., No. 1:16-cv-319, 2017
WL 430733, at *11 (S.D. Ohio Jan. 31, 2017) (argument waived where plaintiff did not “develop it legally or
factually in the Statement of Errors”) (report and recommendation), adopted, 2017 WL 680538 (S.D. Ohio Feb. 21,
2017).
5
The Disability Determination Explanations do not list a professional degree, but the Certified Administrative
Record’s exhibit descriptions of these documents reference a “Ph.D.” (See Doc. 6-3, Exs. 1A and 3A).
4

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101-02). Dr. Gara opined that plaintiff could relate on a superficial basis with coworkers and
supervisors but should have minimal interactions with the general public. (Tr. 102). Dr. Gara
further opined that plaintiff was able to work in relatively static environments where job demands
are routine and predictable in nature. (Id.).
State agency psychological consultant Janet Souder, Psy.D., affirmed Dr. Gara’s
assessment on reconsideration as to the paragraph “B” criteria. (Tr. 110). As to plaintiff’s ability
to sustain concentration and persistence, Dr. Souder agreed that plaintiff could carry out 1-4 step
tasks independently but qualified that this would be only in settings “where there is occasional
flexibility of schedule, within a normal workday/workweek, to permit him to regain focus and
manage symptoms.” (Tr. 114). As to plaintiff’s ability to socially interact, Dr. Souder agreed that
plaintiff’s relations with coworkers and supervisors should be “superficial” but qualified that his
relations should also be limited to a “small group of coworkers and supervisors in a nonpublic
setting.” (Tr. 115).
At the ALJ hearing, plaintiff’s counsel questioned the VE about concentration or
persistence limitations:
Q . . . So the types of jobs that you’ve enumerated, these are all SVP 2, you know,
unskilled jobs. It’s my understanding that in these kind of jobs, break schedules are
dictated by the employer. In other words, the employer says okay, you get a 15minute break at 10:00 a.m., 30 minutes at noon, and at 2:00, you can take another
15 minutes. Would you agree with that?
A I do agree with that.
Q And so if a person needed to pick and choose when they wanted to take their
breaks throughout the workday, would that be problematic?
A Yes, it would be.
Q Similarly, I assume that if someone needed to alter their work schedule, you
know, today, I woke up this morning, I’m not feeling too good for whatever reason,

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and I’d like to start an hour late, but I’ll stay an hour longer at the end of the day. Is
that a problem?
A It is, ma’am.
Q And then with regard to the 10% maximum off-task behaviors, does that have to
be fairly well spread out throughout the workday? In other words, somebody
couldn’t just take an extra 30-minute break and walk away from their workstation?
A That’s correct.
(Tr. 73-74).
The ALJ found the opinions of Drs. Gara and Souder “persuasive” and “accepted” them
“as accurate representations of [plaintiff’s] mental status.” (Tr. 27). The ALJ reasoned that they
were “based on objective signs and findings, consistent with the credible portion of activities of
daily living evidence, and not contradicted by any treating source shown to be familiar with SSA
and occupation standards” and therefore “consistent with and well supported by the evidence of
the record as a whole. . . .” (Id.). The ALJ reached the following mental RFC determination:
[Plaintiff] can perform simple routine tasks that involve only occasional decisionmaking and occasional changes in the work setting. [Plaintiff] should not have faceto-face interaction with the general public but can have telephone or computer online
interaction. He can occasionally interact with coworkers and supervisors. He should
not perform tandem tasks. [Plaintiff] cannot perform fast-paced production work
such as assembly-line work or work where the machine sets the pace, but rather can
perform work that is of a variable rate. There should be no strict production goals
or hourly requirements, only end of the day work goals.
(Tr. 22).
2. Analysis
Plaintiff’s assignment of error concerns how or whether the ALJ incorporated the state
agency psychological consultants’ opinions that she found persuasive into her RFC determination.
A claimant’s RFC is an assessment of “the most [a claimant] can still do despite [his] limitations.”
20 C.F.R. § 416.945(a)(1). A claimant’s RFC assessment must be based on all the relevant

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evidence in her case file. (Id.). The governing regulations 6 describe five categories of evidence:
(1) objective medical evidence, (2) medical opinions, (3) other medical evidence, (4) evidence
from nonmedical sources, and (5) prior administrative medical findings. 20 C.F.R. §
416.913(a)(1)-(5). With two of these categories—medical opinions and prior administrative
findings—an ALJ is not required to “defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s) or prior administrative finding(s) including those
from [the claimant’s] medical sources.” 20 C.F.R. § 416.920c(a).
The ALJ is charged with the final responsibility of determining a claimant’s RFC. See 20
C.F.R. § 416.946(c). The ALJ is responsible for assessing a claimant’s RFC based on all of the
relevant medical and other evidence. 20 C.F.R. § 416.945(a)(3). See also Moore v. Astrue, No.
07-204, 2008 WL 2051019, at *5 (E.D. Ky. May 12, 2008) (citing 20 C.F.R. §§ 404.1545(a)(3),
404.1546(c)) (“[T]he ALJ is responsible for assessing a claimant’s [RFC] by examining all the
evidence in the record.”); Bingaman v. Comm’r of Soc. Sec., 186 F. App’x 642, 647 (6th Cir.
2006)).
The ALJ is “not required to recite the medical opinion of a physician verbatim in h[er]
residual functional capacity finding.” Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th
Cir. 2009). This is so even where an opinion is assigned significant weight. Reeves v. Comm’r of
Soc. Sec., 618 F. App’x 267, 275 (6th Cir. 2015) (“Even where an ALJ provides ‘great weight’ to
an opinion, there is no requirement that an ALJ adopt a state agency psychologist’s opinions
verbatim” or “limitations wholesale.”). At the same time, “[i]f the RFC assessment conflicts with

Plaintiff’s applications were filed after March 27, 2017. Therefore, they are governed by revised
regulations redefining how evidence is categorized and evaluated when an RFC is assessed. See 20 C.F.R. §§
416.913(a), 416.920c.

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an opinion from a medical source, the adjudicator must explain why the opinion was not
adopted.” Social Security Ruling (SSR) 96-8p,7 1996 WL 374184, at *7 (July 2, 1996).
a. Social interaction limitations
For ease of reference, the state agency psychological consultants’ opinions and the ALJ’s
determination on this mental functioning area were the following:
Dr. Gara
Plaintiff “can relate on a
superficial basis with
coworkers and supervisors.
[She] should have minimal
interactions with the general
public.” (Tr. 102).

Dr. Souder
Plaintiff “can relate on a
superficial basis with a small
group of coworkers and
supervisors in a nonpublic
setting.” (Tr. 115).

ALJ
“The claimant should not
have face-to-face
interaction with the general
public but can have telephone
or computer online
interaction. He can
occasionally interact with
coworkers and supervisors.
He should not perform
tandem tasks.” (Tr. 22).

Plaintiff argues that the ALJ omitted from her RFC determination the state agency
psychological consultants’ word “superficial” and Dr. Souder’s qualification that plaintiff could
only work with a “small group of coworkers and supervisors in a nonpublic setting.” (Tr. 102,
115). The Commissioner argues in response that the ALJ was not required to adopt each element
of the state agency psychological consultants’ opinions—even if he found them persuasive
overall. The Commissioner also argues that the ALJ incorporated these limitations using
vocationally relevant terms.
First, the ALJ did not err by omitting the word “superficial.” Several courts within the
Sixth Circuit have found that a restriction against “tandem tasks” or similar terms is a

“Social Security Rulings do not have the force and effect of law, but are ‘binding on all components of the Social
Security Administration’ and represent ‘precedent final opinions and orders and statements of policy and
interpretations’ adopted by the Commissioner.” Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 272 n.1 (6th Cir.
2010) (quoting 20 C.F.R. § 402.35(b)(1)).

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vocationally relevant equivalent for the qualitative connotation of the term “superficial.” See
Kelsey v. Comm’r of Soc. Sec., No. 1:22-cv-280, 2022 WL 18358921, at *6 (W.D. Mich. Dec. 29,
2022) (restricting the plaintiff “to no interaction with the public, occasional interaction with
supervisors and coworkers, and no tandem or cooperative tasks” represented “significant
limitations . . . on the quality of the interaction, essentially amounting to no more than superficial
contact with supervisors and coworkers”) (report and recommendation), adopted, 2023 WL
246884 (W.D. Mich. Jan. 18, 2023); Stamper v. Comm’r of Soc. Sec., No. 1:20-cv-467, 2021 WL
5577405, at *14 (S.D. Ohio Nov. 30, 2021) (“Given [the ALJ’s thorough review of medical
records reflecting generally normal mental health findings] and the fact that the ALJ included
limitations on the nature/quality (as opposed to only the frequency) of interactions, the Court
finds that the ALJ’s mental RFC determination took the state agency psychologists’ opinions
regarding ‘superficial’ interactions into account and was based on substantial evidence.”) (report
and recommendation), adopted sub nom. Stamper v. Kijakazi, 2022 WL 1183234 (S.D. Ohio Apr.
21, 2022); Dickinson v. Comm’r of Soc. Sec., No. 2:19-cv-3670, 2020 WL 4333296, at *12 (S.D.
Ohio July 28, 2020) (“The Court agrees that the limitation to no tandem tasks is a qualitative
limitation on social interaction. As such, this limitation adequately addressed the opinion of [the
state agency consultants] that Plaintiff be limited to superficial interaction with others.”) (report
and recommendation), adopted, 2020 WL 5016823 (S.D. Ohio Aug. 25, 2020); Kearns v.
Comm’r of Soc. Sec., No. 3:19-cv-1243, 2020 WL 2841707, at *12 (N.D. Ohio Feb. 3, 2020)
(“[T]he ALJ’s limitation to no team or tandem tasks is a qualitative limitation on social
interaction and adequately addressed the opinion of [the state agency consultants] that Kearns be
limited to superficial interaction with others.”) (report and recommendation), adopted, 2020 WL
2839654 (N.D. Ohio June 1, 2020); Collins v. Comm’r of Soc. Sec., No. 3:17-cv-2059, 2018 WL

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7079486, at *6 (N.D. Ohio Dec. 7, 2018) (“[T]he ALJ restricted Plaintiff from “team or tandem
tasks” (Tr. 15), which logically require more than superficial interpersonal contact. This is a
restriction on the quality of interpersonal contact.”) (report and recommendation), adopted, 2019
WL 1409535 (N.D. Ohio Mar. 28, 2019). Based on the foregoing, the ALJ properly converted
the word “superficial” into vocationally relevant terms for incorporation into her RFC
determination.
Second, the ALJ did not fail to incorporate Dr. Souder’s limitation to interactions with
only a “small group of coworkers and supervisors in a nonpublic setting.” The ALJ used the
adjective “tandem,” which is defined, as relevant here, as “working . . . in conjunction with each
other.” Tandem, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/tandem
(last visited April 22, 2024) [https://perma.cc/M3NG-3J6T]. Based on this definition, the ALJ’s
restriction against tandem tasks is—if anything—more restrictive than Dr. Souder’s limitation to
interaction with no more than a “small group of coworkers and supervisors.” They are not
inconsistent.
As to Dr. Souder’s limitation that any social interaction be in “nonpublic settings,” the
Court finds that this qualification is encompassed by the ALJ’s restriction against face-to-face
interaction with the general public. Black’s Law Dictionary defines “public,” as relevant here, as
“[a] place open or visible to the public.” Public, BLACK’S LAW DICTIONARY (11th ed. 2019).
Assuming, under the ALJ’s RFC determination, that plaintiff is restricted from all face-to-face
interactions with the general public, the Court finds it difficult to imagine a scenario where
plaintiff would nevertheless find himself in a place “open or visible to the public.” Id.
For the foregoing reasons, the Court finds no conflict between the ALJ’s RFC
determination and the state agency psychological consultants’ opinions on plaintiff’s social

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interaction limitations. This element of the ALJ’s RFC determination is based on substantial
evidence.
b. Concentration or persistence limitations
The state agency psychological consultants’ opinions and the ALJ’s determination on this
mental functioning area were the following:
Dr. Gara
Plaintiff “retains the
capability of concentrating to
be able to carry out 1-4 step
directives independently.”
(Tr. 101-02).

Dr. Souder
Plaintiff “retains the
capability of concentrating to
be able to carry out 1-4
step directives independently
in a setting where there is
occasional flexibility of
schedule, within a normal
workday/workweek, to
permit him to regain focus
and manage symptoms.” (Tr.
114).

ALJ
“The claimant cannot perform
fast-paced production work
such as assembly-line work or
work where the machine sets
the pace, but rather can
perform work that is of
a variable rate. There should
be no strict production goals
or hourly requirements, only
end of the day work goals.”
(Tr. 22).

Plaintiff argues that the ALJ’s RFC determination omits Dr. Souder’s opinion that plaintiff
required “occasional flexibility of schedule to permit him to regain focus and manage symptoms. .
. .” (Doc. 9 at PAGEID 1069, referring to Tr. 114). Plaintiff argues that this error requires
remand because the VE’s testimony demonstrates that such a limitation is work preclusive.
In addition to the arguments noted above, the Commissioner also argues that Dr. Souder’s
opinion is not work preclusive. The Commissioner notes that plaintiff’s counsel questioned the
VE on this mental functioning area in terms of “breaks”—a specific vocational term referring to
formal breaks occurring at specific intervals and, in some cases, away from the work station. See,
e.g., SSR 96-9p, 1996 WL 374185, at *6 (“In order to perform a full range of sedentary work, an
individual must be able to remain in a seated position for approximately 6 hours of an 8-hour
workday, with a morning break, a lunch period, and an afternoon break at approximately 2-hour

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intervals.”). The Commissioner argues that the term “break” contemplates something beyond
what Dr. Souder meant by the phrase “occasional flexibility.”
In reply, plaintiff notes that “occasional” is a specific vocational term referring to a
frequency of up to one-third of the workday or two hours of an eight-hour workday—a concept
with which Dr. Souder, a state agency consultant, would have been familiar. See id. at *3
(“‘Occasionally’ means occurring from very little up to one-third of the time, and would generally
total no more than about 2 hours of an 8-hour workday.”). Plaintiff reasons that Dr. Souder’s
concentration or persistence limitation was work preclusive based on the VE’s testimony about
the jobs she listed (the employee could not pick and choose break times, the employee could be
off task only up to 10% of the day, the employee’s off-task time would have to be spread
throughout the workday). Plaintiff therefore argues that the ALJ rejected this work-preclusive
element of Dr. Souder’s opinion without explanation.
The Court finds there is an inconsistency between the state agency psychological
consultants’ concentration or persistence limitation and the ALJ’s RFC determination. The ALJ
included limitations tailored to plaintiff’s concentration or persistence abilities (variable-rate
work, no strict production quotas or hourly goals (see Tr. 22)). These limitations, however, do
not address the precise issue identified by Dr. Souder: that plaintiff’s moderately limited abilities
in this mental functioning area depended on “occasional flexibility of schedule . . . to permit him
to regain focus and manage symptoms.” (Tr. 114). When plaintiff’s attorney posited to the VE
that plaintiff might need (1) to be off task more than 10% of the workday, (2) extended break
times, or (3) to start or end his workday at flexible times—all of which are reasonably
contemplated under Dr. Souder’s limitation—the VE testified that it would present problems for
the jobs that she identified.

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The ALJ not only found Dr. Souder’s opinion on plaintiff’s concentration or persistence
limitations persuasive, she also “accepted” them “as accurate representations of the claimant’s
mental status.” (Tr. 27). Given these findings by the ALJ and the absence of any other language
in the ALJ’s decision purporting to explain the omission of this limitation, the Court finds that the
ALJ’s decision fails to provide a “‘logical bridge’ between the evidence in the record and [her]
conclusion.” Mukes v. Comm’r of Soc. Sec., 946 F. Supp. 2d 737, 747 (S.D. Ohio 2013) (quoting
Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008)). See also Moore v. Colvin, No. 2:14-cv-455,
2015 WL 5675805, at *7 (S.D. Ohio Sept. 28, 2015) (“[T]his Court is left with an inability to
discern whether the ALJ discounted portions of the[ ] . . . opinions for valid or invalid reasons, or
simply ignored them altogether. See [Stacey v. Comm’r of Soc. Sec., 451 F. App’x 517, 519 (6th
Cir. 2011)]. Such omissions constitute procedural error. . . .”). This element of the ALJ’s RFC
determination is therefore not based on substantial evidence. See id. (“[T]he ALJ’s MRFC
determination is not supported by substantial evidence when he grants significant weight to a
medical opinion concerning the claimant’s limitations, but then fails, without explanation, to
incorporate those limitations into the claimant’s MRFC.”).
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff’s statement of errors (Doc. 9) be OVERRULED in part and SUSTAINED in part
as explained herein;
2. The Commissioner’s non-disability finding be REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS consistent with this decision.

5/8/2024
Date: _________________________

__________________________________
Karen L. Litkovitz
Chief United States Magistrate Judge
14

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BRIAN M.,
Plaintiff,

Case No. 2:23-cv-2649
Watson, J.
Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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