Tasseff v. Commissioner of Social Security

Filing 13

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 3 Complaint filed by George Tasseff. Objections to R&R due by 6/27/2017. Signed by Magistrate Judge Michael J. Newman on 6/13/17. (pb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
GEORGE TASSEFF,
Plaintiff,

Case No. 3:16-cv-00367

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”) and/or Disability Insurance Benefits
(“DIB”).2 This case is before the Court upon Plaintiff’s Statement of Errors (doc. 10), the
Commissioner’s memorandum in opposition (doc. 11), Plaintiff’s reply (doc. 12), the
administrative record (doc. 8), 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.

I.
A.

Procedural History

Plaintiff filed an application for SSI and DIB asserting disability as of October 1, 2004 on
account of a number of impairments, including, inter alia, bipolar disorder, and attention deficit
hyperactivity disorder (“ADHD”). PageID 985.
On March 21, 2012, Plaintiff had a hearing before ALJ Mary Withum. PageID 985. On
May 17, 2012, the ALJ issued a written decision finding Plaintiff not disabled. PageID 51-62.
Plaintiff subsequently appealed that decision. PageID 985. In June 2013, the Appeals Council
denied Plaintiff’s request and Plaintiff appealed to this Court. Id. In April 2014, we remanded
the case under Sentence Four for further proceedings based on the parties’ joint motion to
remand. PageID 985-86.
On remand, Plaintiff received a second hearing before ALJ Gregory Kenyon on
December 17, 2014. PageID 1068. On March 19, 2015 ALJ Kenyon issued a written decision
finding Plaintiff not disabled. PageID 1197-1213. Plaintiff subsequently appealed that decision.
PageID 986. The Appeals Council rejected the ALJ Kenyon’s recommendation, finding that it
failed to account for the evidence relating to Plaintiff’s mental impairments and remanded the
case back to the ALJ for additional proceedings. PageID 1223-27.
On February 25, 2016, Plaintiff received a second hearing before ALJ Kenyon. PageID
1025. On May 3, 2016 ALJ Kenyon issued an opinion in which he again found Plaintiff not
disabled. PageID 982-1011. Specifically, ALJ Kenyon’s findings were as follows:
1.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2009.

2.

The claimant has not engaged in substantial gainful activity since
October 1, 2004, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
2

3.

The claimant has the following severe impairments: bipolar disorder
and attention deficit hyperactivity disorder (ADHD) (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).

5.

After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity [“RFC”] to
perform a range of light work[3] as defined in 20 CFR 404.1567(b) and
416.967(b). The claimant is limited to lifting up to twenty pounds
occasionally, lift or carry up to ten pounds frequently in light work as
defined by the regulations; never climb ladders, ropes, or scaffolds;
and avoid all exposure to unprotected heights; and no operation of
commercial motor vehicles. In addition, work is limited to one or two
step tasks in an environment free of fast paced production
requirements; a low stress job with only occasional decision making
required and only occasional changes in the work setting; only
occasional interaction with the public, coworkers and supervisors.

6.

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

7.

The claimant was born [in] 1963 and was 41 years old, which is
defined as a younger individual age 18-49, on the alleged disability
onset date. The claimant subsequently changed age category to closely
approaching advanced age (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 an issue in this case because the
claimant’s past relevant work is unskilled (20 CFR 404.1568 and

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. § 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

3

416.968).
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 October 1, 2004, through the date of this decision
(20 CFR 404.1520(g) and 416.920(g)).

PageID 982-1011.
Plaintiff did not seek Appeals Council review of ALJ Kenyon’s second decision. See 20
C.F.R. § 404.984(d) (in a case remanded by a Federal Court, “[i]f no exceptions are filed and the
Appeals Council does not assume jurisdiction of [the] case, the decision of the [ALJ] becomes
the final decision of the Commissioner after remand”).

Plaintiff now timely appeals ALJ

Kenyon’s February 25, 2016 decision. See id; see also 20 C.F.R. § 404.984(c).
B.

Evidence of Record

In his second decision, ALJ Kenyon set forth a detailed recitation of the underlying
medical evidence in this case. PageID 989-1002. Plaintiff, in his Statement of Errors, also
summarizes the evidence of record.

Doc. 10 at PageID 2045-51.

The Commissioner, in

response to Plaintiff’s Statement of Errors, defers to ALJ Kenyon’s recitation of the evidence
and presents no objection to Plaintiff’s summary. Doc. 11 at PageID 2064. Except as otherwise
noted herein, the undersigned incorporates the summary of evidence as set forth by ALJ Kenyon
and Plaintiff.
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
4

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”
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

5

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. § 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 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) adequately account
for limitations noted by his treating psychiatrist, Susan Songer, M.D.; (2) comprehensively
evaluate the other medical source opinions; (3) consider his substance abuse under the correct
standard; and (4) find him credible. Doc. 10 at PageID 2053. Finding merit to Plaintiff’s first
alleged error, the undersigned does not address the merits of Plaintiff’s three remaining
contentions.4
In March 2009, Dr. Songer opined that Plaintiff’s mental functioning capabilities were
“moderately” limited with the exception of “marked” limitations in his ability to: (1) understand,
4

Nevertheless, on remand, the undersigned directs that the ALJ assess Plaintiff’s credibility anew
following a meaningful explanation of the weight accorded to the medical source opinions.
6

remember, and carry out very simple instructions; (2) complete a normal workday and workweek
without interruptions from psychologically based symptoms; and (3) perform at a consistent pace
without an unreasonable number and length of rest periods. 5 PageID 696.
ALJ Kenyon, in determining Plaintiff’s RFC, gave “significant weight” to Dr. Songer’s
opinion. PageID 998. Specifically, he found that “the (the function-by-function) conclusions of
Dr. Songer that the Claimant’s mental function capabilities are, for the most part, ‘moderately’
limited are not unreasonable and are given greater (i.e., significant) weight.” Id.
ALJ Kenyon, failed, however, to include a limitation in Plaintiff’s RFC reflecting Dr.
Songer’s opinion that Plaintiff was “markedly” limited in “his ability to complete a normal
workday and workweek without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of rest periods.”
PageID 696. Nor did ALJ Kenyon explain his reasoning for rejecting Dr. Songer’s opinion in
this regard.
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
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-cv-364,

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).
5

7

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. 12-cv-06234JCS, 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”); 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”).6
Here, the RFC and non-disability finding are both unsupported by substantial evidence in
light of ALJ Kenyon’s failure to explain why he chose not to adopt Dr. Songer’s determination
that Plaintiff is “markedly” limited in his ability to complete a normal workday and workweek
without interruptions from psychologically-based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods. 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.

The Commissioner admits that the ALJ did not expressly state that the “marked” limitations
noted by Dr. Songer were rejected. Doc. 11 at PageID 2067. Instead, the Commissioner argues that the
ALJ’s decision “in its entirety included a thorough discussion with citations to the medical evidence
including Plaintiff’s mental health treatment, exam findings, and Plaintiff’s inconsistent statements that
did not support Dr. Songer’s ‘marked’ limitations.” Id. However, the Commissioner’s attempt to cite to
specific areas of the record in support of the ALJ’s ultimate conclusion is not sufficient. “[I]t is the
opinion given by an administrative agency rather than counsel’s ‘post hoc rationale’ that is under the
Court’s consideration.” Evans v. Comm. of Soc. Sec., 142 F. Supp.3d 566, 575 (S.D. Ohio 2015) (citing
Romig v. Astrue, No. 1:12-cv-1552, 2013 WL 1124669, at *6 (N.D. Ohio March 18, 2013) (citations
omitted).
6

8

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, 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.

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: 6/13/2017

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

9

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).