Womble v. Commissioner of Social Security

Filing 9

REPORT AND RECOMMENDATION 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 1 Complaint, filed by Billy Womble. Objections to R&R due by 2/21/2017. Signed by Magistrate Judge Michael J. Newman on 2/6/17. (pb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BILLY WOMBLE,
Plaintiff,

Case No. 3:16-cv-00055

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 Supplemental Security Income (“SSI”).

This case is before the Court upon

Plaintiff’s Statement of Errors (doc. 6), the Commissioner’s memorandum in opposition (doc. 7),
Plaintiff’s reply (doc. 8), the administrative record (doc. 5), and the record as a whole.2
I.
A.

Procedural History

Plaintiff filed an application for SSI on September 14, 2012. PageID 237. Plaintiff
claims disability as a result of a number of impairments, including, inter alia, leg, ankle, and

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID
number.

back impairments; major depressive disorder with anxiety; and borderline intellectual
functioning (“BIF”). PageID 65.
After an initial denial of his application, Plaintiff received a hearing before ALJ Emily
Statum on July 8, 2014.

PageID 62.

The ALJ issued a written decision on

August 19, 2014 finding Plaintiff not disabled. PageID 62-77. Specifically, the ALJ’s findings
were as follows:
1.

The claimant has not engaged in substantial gainful activity since
September 14, 2012, the application date (20 CFR 416.971, et seq).

2.

The claimant has the following severe impairments: status post left
tibial and calcaneus fracture with subsequent osteomyelitis and
placement of intramedullary antibiotic spacer in April of 2012, history
of seizure disorder, mild lumbar compression fracture, major
depressive disorder with anxiety, borderline intellectual functioning,
and alcohol abuse (20 CFR 416.920(c)).

3.

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 416.920(d), 416.925 and 416.926).

4.

After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity [“RFC”] to
perform sedentary work[3] as defined in 20 CFR 416.967(a), with the
following exceptions: he is limited to performing unskilled work
involving simple, repetitive tasks with occasional contact with
coworkers and the public; no climbing of ladders, ropes or scaffolds;
no work at unprotected heights; no driving of vehicles; and no work
with or near dangerous machinery.

5.

The claimant has no past relevant work (20 CFR 416.965).

6.

The claimant was born [in] 1978 and was 34 years old, which is
defined as a younger individual age 18-44, on the date the application
was filed (20 CFR 416.963).

The Social Security Administration (“SSA”) classifies jobs as sedentary, light, medium, heavy,
and very heavy depending on the physical exertion requirements. 20 C.F.R. § 416.967. 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.” 20 C.F.R. § 416.987(a).
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2

7.

The claimant has a limited education and is able to communicate in
English (20 CFR 416.964).

8.

Transferability of job skills is not an issue because the claimant does
not have past relevant work (20 CFR 416.968).

9.

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 416.969 and
416.969(a)).

10.

The claimant has not been under a disability, as defined in the Social
Security Act, since September 14, 2012, the date the application was
filed (20 CFR 416.920(g)).

PageID 62-77.
Thereafter, the Appeals Council denied review on December 22, 2015, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 42-47.
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

In her decision, the ALJ set forth a detailed recitation of the underlying medical evidence
in this case. PageID 65-70. Plaintiff, in his Statement of Errors, also summarizes the evidence
of record. Doc. 6 at PageID 796-801. The Commissioner, in response to Plaintiff’s Statement of
Errors, defers to the ALJ’s recitation of the evidence and presents no objection to Plaintiff’s
summary.

Doc. 7 at PageID 813.

Except as otherwise noted herein, the undersigned

incorporates the summary of evidence as set forth by the ALJ and Plaintiff.

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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
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”

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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. § 416.920(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), 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
experience, and RFC -- do significant numbers of other jobs exist in
the national economy which the claimant can perform?

20 C.F.R. § 416.920(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 disability under the Social
Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
III.
In his Statement of Errors, Plaintiff argues that the ALJ failed to: (1) account for his
inability to respond appropriately to criticism from supervisors; (2) incorporate his difficulties in
maintaining concentration, persistence, or pace in the hypothetical question posed to the
Vocational Expert (“VE”); and (3) find him credible. Doc. 8 at PageID 829-32. Finding merit to
Plaintiff’s first alleged error, the undersigned does not address the merits of Plaintiff’s two
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remaining contentions.4
In April 2013, record reviewing psychologist Cynthia Waggoner, Psy.D., following a
review of Plaintiff’s medical records, opined that he was moderately limited5 in his ability to:
carry out detailed instructions; maintain attention and concentration for extended periods;
complete a normal workday and workweek without interruptions form psychologically-based
symptoms; perform at a consistent pace without an unreasonable number and length of rest
periods; interact appropriately with the general public; accept instructions and respond
appropriately to criticism from supervisors; and respond appropriately to changes in the work
setting. PageID 147-48. The ALJ, in determining Plaintiff’s RFC, gave “significant weight” to
Dr. Waggoner’s opinion. PageID 75.
However, despite Dr. Waggoner’s opinion that Plaintiff was limited in his ability to
“respond appropriately to criticism from supervisors,” see PageID 147, and despite the ALJ
giving such opinion “significant weight,” PageID 75, the ALJ included no such limitation in
Plaintiff’s RFC. PageID 71. A limitation concerning the ability to interact with supervisors is
significant because the VE testified at the administrative hearing that such an individual could
not maintain employment (and would thus be disabled). PageID 101-02.
Although the undersigned recognizes that the ALJ need only accept those limitations
found credible, see Casey v. Sec. of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir.
1993), the ALJ still must meaningfully explain why certain limitations are not included in the
RFC determination -- especially when such limitations are set forth in opinions the ALJ weighs

4

Nevertheless, on remand, the undersigned would direct that the ALJ assess Plaintiff’s credibility
anew following a meaningful explanation of the weight accorded to the medical source opinions.
5
Whereas “mild” and “moderate” functional limitations are generally considered “nondisabling,” see Sims v. Comm'r of Soc. Sec., 406 F. App’x 977, 980 (6th Cir. 2011), “marked” limitations
are suggestive of disability. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(C); Lankford v. Sullivan, 942
F.2d 301, 307 (6th Cir. 1991).
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favorably. O’Ryan v. Comm’r of Soc. Sec., No. 3:14-CV-125, 2015 WL 6889607, at *4 (S.D.
Ohio July 30, 2015), report and recommendation adopted, No. 3:14-CV-125, 2015 WL 4934190
(S.D. Ohio Aug. 18, 2015); Howard v. Comm’r of Soc. Sec., No. 3:14-CV-364, 2015 WL
8213614, at *4 (S.D. Ohio Dec. 9, 2015), report and recommendation adopted, No. 3:14-CV364, 2016 WL 99114 (S.D. Ohio Jan. 7, 2016); see also SSR 96-8p, 1996 WL 374184, at *7
(July 2, 1996) (stating that, “[i]f the RFC assessment conflicts with an opinion from a medical
source, the adjudicator must explain why the opinion was not adopted”); Hann v. Colvin, No. 12cv-06234-JCS, 2014 WL 1382063, at *22 (N.D. Cal. Mar. 28, 2014) (finding that “where an ALJ
has already found a physician’s opinions to be credible and concrete, an ALJ can err by omitting
aspects of that physician’s opinions from the RFC”); Stoddard v. Astrue, No. 3:09-cv-91, 2010
WL 3723924, at *1 (E.D. Tenn. Feb. 19, 2010); Washington v. Colvin, No. 13–1147–SAC, 2014
WL 4145547, at *3 (D. Kan. Aug. 19, 2014) (finding the ALJ’s “failure to either include
[certain] limitations [as opined by a medical source], or explain why they were not included in
the RFC findings, [to be] especially problematic in light of the fact that the ALJ accorded
“substantial” weight to [the medical source’s] opinions”).
Here, the RFC and non-disability finding are both unsupported by substantial evidence in
light of the ALJ’s failure to explain why Plaintiff was not limited in her ability to respond
appropriately to supervisors, as opined by Dr. Waggoner. See PageID 71-75, 100-02, 147; see
also SSR 96-8p, 1996 WL 374184, at *7. Such failure amounts to reversible error. See O’Ryan,
2015 WL 6889607, at *4.
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.

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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, therefore, a remand for further
proceedings is proper so that the ALJ can properly assess all opinion evidence of record anew in
light of the foregoing findings.
V.
IT IS THEREFORE RECOMMENDED THAT:
1.

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.

Date:

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

This case be CLOSED.

February 6, 2017

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

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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. This period is not extended by virtue of Fed. R.
Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system.
If, however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an
extension of the deadline to file objections by filing a motion for extension, which the Court may
grant upon a showing of good cause.
Any objections filed 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 noted above, this period is not extended by virtue of Fed. R. Civ.
P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
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).

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