Daniel v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJS NON-DISABILITY FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (3) THIS CASE BE CLOSED re 4 Complaint filed by Renee D. Daniel. Objections to R&R due by 6/17/2016. Signed by Magistrate Judge Michael J. Newman on 5/31/16. (pb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
RENEE D. DANIEL,
Plaintiff,

Case No. 3:15-cv-126

vs.
COMMISSIONER OF
SOCIAL SECURITY,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND
REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER
THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT
WITH THIS OPINION; AND (3) THIS CASE BE CLOSED

This is a Social Security disability benefits appeal.

At issue is whether the

Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore
unentitled to Disability Insurance Benefits (“DIB”) and/or Supplemental Security Income
(“SSI”).2 This case is before the Court upon Plaintiff’s Statement of Errors (doc. 10), the
Commissioner’s memorandum in opposition (doc. 12), Plaintiff’s reply (doc. 13), the
administrative record (doc. 8),3 and the record as a whole.

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
“The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are
identical . . . and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 416.920[,] respectively.” Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this Report and Recommendation to DIB
regulations are made with full knowledge of the corresponding SSI regulations, and vice versa.
3
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID
number.

I.
A.

Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of December 1, 2008.
PageID 383-89. Plaintiff claims disability as a result of a number of alleged impairments
including, inter alia, lumbar degenerative disc disease, diabetes mellitus, and depression.
PageID 63. After initial denials of her applications, Plaintiff received a hearing before ALJ
Amelia G. Lombardo on May 12, 2011. PageID 126-50. The ALJ issued a written decision on
August 18, 2011 finding Plaintiff not disabled. PageID 196-219. Plaintiff appealed to the
Appeals Council who remanded the case for further proceedings. PageID 220-23.
Following the Appeals Council remand, Plaintiff received hearings before ALJ
Lombardo on March 12, 2013 and August 8, 2013. PageID 92-125, 151-88. The ALJ issued a
written decision on November 21, 2013, again finding Plaintiff not disabled. PageID 60-80.
Specifically, the ALJ’s findings were as follows:
1.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2014.

2.

The claimant has not engaged in substantial gainful activity since
December 1, 2008, the alleged disability onset date (20 CFR 404.1571
et seq. and 416.971 et seq.).

3.

The claimant has the following severe impairments: chronic
obstructive pulmonary disease (COPD); mild narrowing of the medial
compartment of the right knee; lumbar degenerative disc disease; mild
left C5-6 radiculopathy with little diagnostic correlation; osteoarthritis
of the right thumb, as well as some osteoarthritis of the hand; obesity;
diabetes mellitus with mild peripheral neuropathy; and depression (20
CFR 404.1520(c) and 416.920(c)).

4.

The claimant 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 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926).

2

5.

After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity [“RFC”] to
perform light work as defined in 20 CFR 404.1567(b)[4] and
416.967(b) with the following limitations: unskilled work (as defined
in the [Dictionary of Occupational Titles] DOT); no climbing ladders,
ropes, or scaffolds; no exposure to heights or hazards; occasional
stooping, crouching, kneeling, and crawling; needs a clean-air (office)
environment; the ability for a brief change of position (one to two)
between sitting and standing every 30 minutes; and frequent fingering
and handling with the right, dominant hand.

6.

The claimant is unable to perform any [of her] past relevant work (20
CFR 404.1565 and 416.965).

7.

The claimant was born [in] 1967 and was 41 years old, which is
defined as a younger individual age 18-49, on the alleged disability
onset date (20 CFR 404.1563 and 416.963).

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not
the claimant has transferable job skills (20 CFR 404.1568 and
416.964).

10.

Considering the claimant’s age, education, work experience, and
[RFC], there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from December 1, 2008, through the date of this decision
(20 CFR 404.1520(g) and 416.920(g)).

PageID 62-79.
4

The Social Security Administration classifies jobs as sedentary, light, medium, heavy, and very
heavy depending on the physical exertion requirements. 20 C.F.R. § 404.1567. Light work “involves
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds” and “requires a good deal of walking or standing, or . . . sitting most of the time with some
pushing and pulling of arm or leg controls.” Id. § 404.1567(b). An individual who can perform light
work is presumed also able to perform sedentary work. Id. Sedentary work “involves lifting no more
than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties.” Id. § 404.1567(a).
3

Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 48-50.
Plaintiff then filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir.
2007) (noting that, “[u]nder the Federal Rules of Appellate Procedure, [claimant] had 60 days
from the Appeals Council’s notice of denial in which to file his appeal”).
B.

Evidence of Record

The ALJ set forth a detailed recitation of the underlying medical evidence in this case.
PageID 63-77. Plaintiff, in her Statement of Errors, summarizes the relevant medical evidence.
Doc. 10 at PageID 1323-28. The Commissioner’s memorandum in opposition defers to the
ALJ’s recitation of evidence. Doc. 12 at PageID 1350. Except as otherwise stated in this Report
and Recommendation, the undersigned incorporates the recitation of evidence put forth by both
Plaintiff and the ALJ. Where applicable, the Court will identify the medical evidence relevant to
this Report and Recommendation.
II.
A. Standard of Review
The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 74546 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found Plaintiff
4

disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the
Commissioner will not be upheld where the [Social Security Administration] fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen, 478 F.3d at 746.
B.

“Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined
by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are both “medically determinable”
and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging
in “substantial gainful activity” that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin, 475 F.3d at 730, the complete sequential review poses five questions:
1.

Has the claimant engaged in substantial gainful activity?

2.

Does the claimant suffer from one or more severe impairments?

3.

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 (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?

5.

Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
5

experience, and RFC -- do significant numbers of other jobs exist in the
national economy which the claimant can perform?
20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F.Supp.2d 816, 818
(S.D. Ohio 2001). A claimant bears the ultimate burden of establishing that he or she is disabled
under the Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th
Cir. 1997).
III.
In her Statement of Errors, Plaintiff argues that the ALJ failed to properly: (1) consider
her depression in determining her RFC, and in evaluating whether her impairments meet or equal
a Listing; (2) weigh the medical expert (“ME”) testimony; and (3) evaluate the “other source”
opinion of Sue Carter, a nurse practitioner. Doc. 10 at PageID 1329-45. Finding remand
warranted based upon the ALJ’s RFC determination -- as it relates to her mental impairments -the undersigned makes no finding with regard to Plaintiff’s remaining assignments of error.5
A person’s RFC is the most that an individual can do despite all physical and mental
limitations. 20 C.F.R. § 404.1545(a)(1). An ALJ determines a claimant’s RFC “based on all the
relevant evidence in [the claimant’s] case record,” including statements about what the claimant
can do “provided by medical sources” and “descriptions and observations of [the claimant’s]
limitations from [his or her] impairment(s), including limitations that result from [the claimant’s]
symptoms, such as pain, provided by [his or her] family, neighbors, friends, or other persons.”
20 C.F.R. § 404.1545(a)(3).

However, the undersigned notes Plaintiff’s concern -- given the ALJ’s reliance on the ME’s
testimony -- that the ME failed to specifically discuss her diagnosis of diabetes mellitus, and any related
limitations, during the August 8, 2013 administrative hearing. See PageID 74, 95-117. On remand, the
ALJ should reassess the impact of Plaintiff’s diabetes mellitus -- if any -- on her RFC, and identify the
record evidence supporting a conclusion in that regard.
5

6

Here, the ALJ found Plaintiff’s depression “severe” at Step Two, and that it causes
“moderate” limitations in maintaining concentration, persistence, or pace. PageID 63, 66, 77.
Plaintiff’s RFC includes limitations related to her physical impairments, and a limitation to
“unskilled work,” as defined in the DOT. PageID 67, 77. Plaintiff argues that the RFC fails to
account for her depression and associated deficiency in concentration, persistence, or pace. Id.;
doc. 10 at PageID 1329-34.
The undersigned agrees. This Court has repeatedly held that a limitation to “unskilled
work” -- without further limitations related to pace or production quotas -- “does not adequately
factor in ‘moderate’ limitations in concentration, persistence or pace.”

See, e.g., Swint v.

Comm’r of Soc. Sec., No. 1:13-cv-582, 2014 WL 4426246, at *6 (S.D. Ohio Sept. 8, 2014);
Webb v. Comm’r of Soc. Sec., No. 1:12-cv-984, 2013 WL 6795609, at *3 (S.D. Ohio Dec. 20,
2013) Report and Recommendation adopted 2014 WL 576395 (S.D. Ohio Feb. 12, 2014);
Crooks v. Comm’r of Soc. Sec., No. 2:13-cv-605, 2014 WL 2608170, at *6-7 (S.D. Ohio June 11,
2014) Report and Recommendation adopted 2014 WL 2988340 (S.D. Ohio July 2, 2014).
Because Plaintiff’s RFC includes the same limitations set forth in the hypothetical
question to the vocational expert (“VE”) at the administrative hearing, PageID 67, 120-21, the
Court finds the ALJ erred by relying on the VE’s testimony at Step 5 of the sequential benefits
analysis. See Cole v. Astrue, 661 F.3d 931, 939 (6th Cir. 2011) (“[i]n order for a VE’s testimony
to constitute substantial evidence that a significant number of jobs exists, the questions must
accurately portray a claimant’s physical and mental impairments”). Accordingly, the Court finds
merit to Plaintiff’s first assignment of error, and the ALJ’s non-disability finding should be
reversed. This analysis renders moot Plaintiff’s remaining arguments.

7

IV.
When the ALJ’s non-disability determination is unsupported by substantial evidence, the
Court must determine whether to remand the matter for rehearing or to award benefits.
Generally, benefits may be awarded immediately “if all essential factual issues have been
resolved and the record adequately establishes a plaintiff’s entitlement to benefits.” Faucher v.
Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan,
905 F.2d 918, 927 (6th Cir. 1990). The Court may only award benefits where proof of disability
is strong and opposing evidence is lacking in substance, so that remand would merely involve the
presentation of cumulative evidence, or where proof of disability is overwhelming. Faucher, 17
F.3d at 176; see also Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994).
Here, evidence of disability is not overwhelming and factual issues remain -- namely,
whether sufficient jobs exist that Plaintiff can perform despite limitations arising from her mental
and physical impairments. See supra note 5. Accordingly, the undersigned concludes that
remand for further proceedings is necessary so the ALJ can reasonably and meaningfully weigh
all opinion evidence, and determine Plaintiff’s RFC and disability status anew.
V.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be found unsupported by
substantial evidence, and REVERSED;

2.

This matter be REMANDED to the Commissioner under the Fourth
Sentence of 42 U.S.C. § 405(g) for proceedings consistent with this
opinion; and

3.

This case be CLOSED.

Date: May 31, 2016

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
8

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation 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 of 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 FOURTEEN days after being
served with a copy thereof.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).

9