Otto v. Commissioner of Social Security Administration

Filing 17

OPINION AND ORDER: the Court SUSTAINS the statement of errors (Doc. 11) and REMANDS the case the case to the Commissioner pursuant to 42 U.S.C. §405(g), sentence four, for an immediate award of benefits. Signed by Magistrate Judge Terence P. Kemp on 3/24/21. (sh)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Randall A. Otto,

:

Plaintiff,

:
Case No. 3:20-cv-00060-TPK

vs.

:

Andrew Saul,
Commissioner of
Social Security,

:

Defendant.

Magistrate Judge Kemp

:
:

OPINION AND ORDER
Plaintiff Randall A. Otto filed this action seeking review of a final decision of the
Commissioner of Social Security. That decision, issued by the Appeals Council on December
18, 2019, denied his applications for social security disability benefits and supplemental security
income. Plaintiff filed a statement of errors on June 29, 2020 (Doc. 11) to which the
Commissioner responded on September 10, 2020 (Doc. 14). The parties have consented to final
disposition of this case by a United States Magistrate Judge. For the following reasons, the Court
will SUSTAIN the statement of errors and REMAND this case to the Commissioner under the
42 U.S.C. § 405(g), sentence four, for an immediate award of benefits.
I. INTRODUCTION
Plaintiff protectively filed his applications on January 22, 2016 and March 4, 2016,
respectively, alleging that he became disabled on August 4, 2015. After initial administrative
denials of his claim, Plaintiff appeared at a hearing held before an Administrative Law Judge on
July 25, 2018. A vocational expert, Karen Schneider, also testified at the hearing.
The Administrative Law Judge issued an unfavorable decision on January 2, 2019. In that
decision, she first found that Plaintiff met the insured status requirements of the Social Security
Act through December 31, 2020, and that he had not engaged in substantial gainful activity since
the alleged onset date. The ALJ next concluded that Plaintiff suffered from severe impairments
including degenerative disc disease of the lumbar spine, moderate spinal canal stenosis of the
thoracic spine, mild disc herniation of the cervical spine, acromioclavicular joint separation with
minimal degenerative joint disease of the right shoulder, morbid obesity, mixed anxiety and
depressive disorder, depressive disorder, and alcohol and drug substance abuse disorders.
However, the ALJ also found that none of these impairments, taken singly or in combination,
met the criteria for disability found in the Listing of Impairments.

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Moving to the next step of the sequential evaluation process, the ALJ found that Plaintiff
could perform a reduced range of light work. She concluded that Plaintiff could carry out the
exertional demands of light work but could only push or pull and reach overhead occasionally
with his arms. He could frequently stoop and crouch but crawl only occasionally. He could not
work at unprotected heights or around dangerous machinery and could do no occupational
driving. From a mental standpoint, Plaintiff could perform one- to four-step tasks with
occasional interaction with coworkers but no shared or tandem tasks, with occasional interaction
with the public but not in a customer service capacity, and with occasional interaction with
supervisors but not with over-the-shoulder supervision. He could adapt to normal changes in the
workplace but might need to receive advance notice of any major changes.
The ALJ determined that with these limitations, Plaintiff could not perform his past
relevant work as a fast food worker or management trainee. At the hearing, the vocational expert
testified that someone with the residual functional capacity determined by the ALJ could do
certain light jobs including mail clerk, merchandise marker, and housekeeping cleaner. The ALJ
accepted this testimony as well as the testimony that these jobs exist in significant numbers in the
national economy. As a result, she concluded that Plaintiff was not disabled within the meaning
of the Social Security Act.
In his statement of errors, Plaintiff raises four separate issues. He argues generally that
the ALJ’s decision is not supported by substantial evidence and then, in his other three
assignments of error, contends that the ALJ erred in her weighing of the opinion evidence from
treating sources Drs. Linn and Bishop and gave undue weight to the opinions of the state agency
reviewers; made unreasonable and unsupportable evidentiary findings; and did not properly
accept testimony about disability from the vocational expert involving Plaintiff’s inability to
accept over-the-shoulder supervision during any probationary period.
II. STANDARD OF REVIEW
As this Court said in Jeter v. Comm'r of Soc. Sec. Admin., 2020 WL 5587115, at *1–2
(S.D. Ohio Sept. 18, 2020),
Judicial review of an ALJ's non-disability decision proceeds along two lines:
“whether the ALJ applied the correct legal standards and whether the findings of
the ALJ are supported by substantial evidence.” Blakley v. Comm'r of Soc. Sec.,
581 F.3d 399, 406 (6th Cir. 2009); see Bowen v. Comm'r of Soc. Sec., 478 F.3d
742, 745-46 (6th Cir. 2007). Review for substantial evidence is not driven by
whether the Court agrees or disagrees with the ALJ's factual findings or by
whether the administrative record contains evidence contrary to those factual
findings. Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014);
Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Instead, the
ALJ's factual findings are upheld if the substantial-evidence standard is met—that
is, “if a ‘reasonable mind might accept the relevant evidence as adequate to
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support a conclusion.’ ” Blakley, 581 F.3d at 407 (quoting Warner v. Comm'r of
Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of
“more than a scintilla of evidence but less than a preponderance....” Rogers, 486
F.3d at 241 (citations and internal quotation marks omitted); see Gentry, 741 F.3d
at 722.
The other line of judicial inquiry—reviewing the correctness of the ALJ's legal
criteria—may result in reversal even when the record contains substantial
evidence supporting the ALJ's factual findings. Rabbers v. Comm'r of Soc. Sec.,
582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if
supported by substantial evidence, ‘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 [quotations and citations omitted].

III. FACTUAL BACKGROUND
The Court will begin its review of the factual background of this case by summarizing the
testimony given at the administrative hearing. It will then recite the pertinent information found
in the medical records.
Plaintiff, who was 39 years old at the time of the hearing, first testified that he lived with
his father and mother as well as one of his brothers. He had no education beyond high school.
He drove about three times per week taking his son to football practice. His last job was working
at a Taco Bell restaurant, first as a crew member and then as a manager.
At age 21, Plaintiff was diagnosed with bipolar disorder. He had been taking medication
on and off since then but sometimes did not have insurance to cover the cost. Plaintiff stopped
working in August of 2015 due to a prolonged manic episode which caused him to be jailed and
to make threats against people, ultimately resulting in his being fired. Before that, he had injured
his back at work, and received treatment in the form of physical therapy and injections. In 2017
he attempted suicide and was also jailed for threats against the mother of his children.
Plaintiff testified that he was able to do various household activities including helping
with cooking and cleaning but that he needed breaks to do so. He also helped care for the family
pets. Occasionally he had issues with his family members, and he also suffered bouts of
depression on a weekly basis. Finally, he said he had anxiety issues as well and took medication
for that condition although it did not always help.
The vocational expert, Ms. Schneider, classified Plaintiff’s past work as a fast food
worker and management trainee as light and either unskilled or skilled. She was then asked
questions about a person who had the residual functional capacity to do a reduced range of light
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work as determined by the ALJ (including no tolerance for over-the-shoulder supervision), and
said that such a person could not do Plaintiff’s past work. The person could, however, do jobs
like mail clerk, merchandise marker, and housekeeping cleaner, and she gave numbers for those
jobs as they existed in the national economy. If the person could use his or her dominant hand
only occasionally, that person could not work.
Ms. Schneider was then asked a series of questions about over-the-shoulder supervision.
She testified that in order to do the jobs she identified, there would be some of that type of
supervision during any probationary period, but not once the person had learned the job. If the
person had zero tolerance for over-the-shoulder supervision, Ms. Schneider said that in her
opinion such a person could not complete the required probationary period. Other factors which
would completely rule out employment included the need to work in complete isolation, missing
work twice per month, being off task more than 15% of the time, needing to take breaks on a
flexible schedule, and making threats of violence against coworkers.
Because, as more fully discussed below, the Court finds that the ALJ’s failure to accept
the vocational testimony regarding probationary periods to be dispositive, the Court will
summarize the medical evidence only briefly. Much of it deals with Plaintiff’s psychological
condition.
Plaintiff was seen in the Emergency Room of Grandview Hospital on August 4, 2015,
after getting aggressive with his counselor. His medical history included diagnoses of bipolar
disorder and anxiety. He was described as slightly agitated but did not need hospitalization.
Later that same year he was treated at Samaritan Behavioral Health, Inc., appearing with
hyperactivity and rapid and pressured speech as well as paranoid and religious delusions. He
also appeared impaired in his attention, concentration, and memory. His primary diagnosis was
bipolar disorder I but there was also a diagnosis of anxiety. He engaged in a short term of
treatment with that provider before transferring to Mahajan Therapeutics, a provider closer to his
home. His family physician, Dr. Linn, also provided medication for his psychiatric conditions
during this time, including Seroquel and Xanax, and treated him for various physical conditions
as well including back pain accompanied by numbness, weakness, and other abnormalities
including a restricted range of motion. These symptoms led to a referral for pain management as
well as to an unsuccessful course of physical therapy.
Plaintiff reported numerous psychiatric symptoms in 2015 and 2016 including manic
episodes, crying spells, depressed mood, lethargy, anxiety, aggression, and anger as well as
difficulty sleeping, and Dr. Linn consistently reported that Plaintiff seemed anxious. In 2016,
Plaintiff became a patient at Reach Out of Montgomery County. He continued to report
symptoms of sleeping difficulties and anxiety and continued to receive medication for bipolar
disorder.
Throughout 2107 and 2018, Dr. Linn’s office notes consistently refer to Plaintiff as being
positive for a dysphoric mood, sleep disturbance, and being nervous and anxious, and they also
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document additional treatment for Plaintiff’s various physical ailments. In 2018, Dr. Linn filled
out a medical impairment questionnaire noting that Plaintiff’s symptoms consisted of severe back
pain and right shoulder pain. Dr. Linn thought Plaintiff could stand and sit for only thirty
minutes at a time and could work for only two hours per day. Other limitations were described
as well, and he opined that Plaintiff would be off task more than 20% of the time and miss work
three times per month. (Tr. 1003-04). He had previously told the Ohio Department of Job and
Family Services that Plaintiff was unemployable due to both physical and mental impairments.
Dr. Bishop, a psychiatrist, began seeing Plaintiff for medication management n 2015. In
a note dated January 4, 2017, he reported that Plaintiff was doing reasonably well and that he had
not had any significant manic episodes. He did have a manic episode in March of that year
which could have been caused by alcohol consumption. The most frequently mentioned
symptom was insomnia, but Plaintiff was experiencing sleep apnea and also was practicing poor
sleep hygiene. Dr. Bishop completed a questionnaire in September, 2017, indicating that he had
been treating Plaintiff for almost two years and that Plaintiff suffered from a severe mood
disturbance characterized by poor memory, sleep and mood disturbance, social withdrawal,
emotional lability, illogical thinking, decreased energy, manic syndrom, recurrent panic attacks,
loss of interest, and difficulty thinking or concentrating. He thought Plaintiff would be off task
20% or more during a workday and would miss work more than three times per month. Dr.
Bishop also rated the level of Plaintiff’s impairment as either “marked” or “extreme” in all workrelated areas of functioning. (Tr. 666-68). Dr. Bishop’s notes from 2018 show that Plaintiff had
another manic episode that year but that otherwise his mood was stable, his medications were
working well, and his sleep was better. Dr. Bishop had also told the Department of Job and
Family Services that Plaintiff could not work.
Dr. Bonds performed a consultative psychological evaluation of Plaintiff on June 14,
2016. Plaintiff explained that his disability application was based on depression, anxiety,
difficulty sleeping, back pain, and bipolar disorder and that he had difficulty concentrating and
memory problems. He told Dr. Bonds that he was seeing Dr. Bishop at Mahajan Therapeutics
for anger management therapy. Plaintiff appeared “anxious and tense” during the interview but
demonstrated adequate insight and understanding. Dr. Bonds rated Plaintiff’s GAF at 50 and
said that Plaintiff was able to read and understand written instructions, that he had satisfactory
attention and concentration during the interview (although he reported interference with these
abilities when he experienced mood swings), that although he was cooperative during the
evaluation he also reported problems controlling his temper, and that his “ability to handle work
pressures is limited because of his low frustration tolerance and poor emotional controls.” (Tr.
526-33).
The state agency reviewers reached the following conclusions. Drs. Klyop and Manos
both thought that, physically, Plaintiff could do light work but was limited in his ability to push
or pull with his right arm or to reach with it overhead and that he had some slight postural
restrictions. Dr. Kirwin, a psychologist, concluded that Plaintiff could understand, remember,
and carry out one- to four-step work tasks and that he was moderately limited in his ability to
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maintain attention and concentration for extended periods, restricting him to the performance of
tasks without high pace or high production quotas. Dr. Kirwin also noted that Plaintiff had some
moderate limitations in his ability to interact with others, including supervisors, coworkers, and
the general public. Dr. Baker, a second psychologist, thought that Plaintiff might need
occasional flexibility with breaks when he experienced increased symptoms and also that he
could have occasional and superficial contact with supervisors, coworkers, and the general
public, with the caveat that supervisors should provide constructive feedback. Plaintiff would
also need advance notice of major workplace changes and time to adjust to them. Dr. Baker also
indicated that the consultative examiner’s opinion was “an overestimate fo the severity of
[Plaintiff’s] restrictions/limitations” because it was based on Plaintiff’s subjective report and
symptoms and was inconsistent with other evidence. (Tr. 126).
IV. DISCUSSION
The third claim raised in Plaintiff’s statement of errors rests on the vocational expert’s
testimony about the effect of being unable to tolerate over-the-shoulder supervision. As noted
above in the summary of the testimony given at the administrative hearing, the expert said that
such supervision necessarily occurs during the probationary period of the jobs she identified and
that a person’s inability to adapt to such supervision would preclude the person from completing
any probationary period successfully. According to the Commissioner, however, this testimony
is “irrelevant to Plaintiff’s RFC” because the residual functional capacity finding describes what
a claimant can do on a sustained basis rather than during a short probationary period and that to
find otherwise would ignore the 12-month durational requirement for disability found in 42
U.S.C. §423(d)(1)(A). The Court will address this claim first because it is dispositive of the
issue of remand.
It appears that the Commissioner has unsuccessfully advanced similar arguments in the
past when this issue has arisen. A comprehensive analysis of the question can be found in the
Court of Appeals for the Second Circuit’s decision in Sczepanski v. Saul, 946 F.3d 152 (2d Cir.
2020). There, the ALJ found that the claimant would potentially need to be absent from work
one day per month. The vocational expert identified three unskilled jobs which the claimant
could do, but testified that during a 90- to 120-day probationary period for these jobs, no
absenteeism would be tolerated. The ALJ concluded that this testimony was irrelevant because
the key issue was whether the claimant could “do the job.” The District Court affirmed the
Commissioner’s decision, reasoning that the ability to complete a probationary period was an
“outside factor” and not pertinent to the claimant’s ability to sustain substantial gainful
employment. See Sczepanski v. Colvin, 2019 WL 210842, *3 (W.D.N.Y. Jan. 15, 2019).
The Court of Appeals reversed. It acknowledged that it was the first Court of Appeals to
address the question of whether the inability to complete a probationary period required a finding
that a claimant could not do substantial gainful activity, but noted that “[m]ultiple district courts
have passed on the question ... and nearly all have answered it in the affirmative.” See
Sczepanski v. Saul, 946 F.3d 152, 158 (2d Cir. 2020), citing to district court decisions from
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Florida, Indiana, Oregon, Iowa, and, interestingly, from this Court. Id. at n.6. The Court of
Appeals specifically rejected the Commissioner’s claim that probationary periods are irrelevant
to the question, reasoning that “the ability to keep a job is a necessary prerequisite to the ability
to engage in substantial gainful activity.” Id. at 159. It also declined to accept the
Commissioner’s arguments that “hiring practices” are irrelevant to this question, noting that the
need to complete a probationary period was not a hiring practice. The Court of Appeals also did
not agree with the Commissioner that the relevant legislative history (which the Court analyzed
in some detail) counseled in favor of a different result.
The case from this Court cited in Sczepanski is Judge Newman’s decision in McLaughlin
v. Comm'r of Soc. Sec., 2019 WL 125761 (S.D. Ohio Jan. 8, 2019), report and recommendation
adopted, 2019 WL 1902749 (S.D. Ohio Apr. 29, 2019). McLaughlin did not actually decide the
question because the Commissioner had conceded error and had moved for remand. As a result,
the issue presented in that case was only whether a remand was necessary to resolve
inconsistencies in the evidence, or whether an immediate award of benefits should be ordered.
As more fully discussed below, the Court chose the latter option. Later, however, in McAfee v.
Comm’r of Soc. Sec., 2020 WL 5810004 (September 30, 2020), Judge Newman resolved this
question in favor of the claimant (who, like Plaintiff here, was deemed to be unable to tolerate
over-the-shoulder supervision), and he remanded that case for an award of benefits as well.
Thus, this Court is on record as having rejected the exact argument advanced by the
Commissioner in this case, although, to be fair, the Commissioner’s memorandum was filed in
this case twenty days before Judge Newman’s decision in McAfee was issued. Nevertheless, this
Court does not write on a clean slate.
The Court finds the reasoning and results of Sczepanski and McAfee to be persuasive.
The successful completion of a probationary period is one of many requirements of substantial
gainful employment, and the Court sees no reason to treat it differently from any other job
requirement which a person seeking to retain employment must be able to perform within the
limits of his or her residual functional capacity. Consequently, the Court concludes that the
Commissioner did not meet his burden at step five of the sequential evaluation process of
demonstrating that there were jobs in the national economy which Plaintiff was capable of
performing.
Although the Commissioner’s memorandum does not offer this justification for the error,
the ALJ did attempt to undercut for this conclusion by reasoning that “there is nothing in the
record to suggest that the claimant is unable to complete a probationary period” because Plaintiff
“was ... able to work as a crew member for over seven years, demonstrating an ability to control
his behaviors during probationary periods,” see Tr. 34. That statement, however, is not based on
substantial evidence. There was no testimony that any of Plaintiff’s past work required a
probationary period; no evidence that during such a period over-the-shoulder supervision was
involved; and no evidence, that, if there had been a probationary period, Plaintiff was, at that
time, psychologically unable to accept over-the-shoulder supervision. Further, that statement
directly conflicts with the earlier finding made by the ALJ that Plaintiff’s residual functional
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capacity did not include the ability to tolerate any over-the-shoulder supervision. The ALJ
therefore committed error, and the question then becomes whether to remand the case for an
award of benefits, as was done in McLaughlin and McAfee, or to remand for further
consideration.
This Court has previously set forth the standard for determining the nature of the remand
to be ordered. As the Court said in Masters v. Comm'r of Soc. Sec., 382 F. Supp. 3d 726, 734
(S.D. Ohio 2019),
The Court has authority to affirm, modify or reverse the Commissioner's decision
“with or without remanding the cause for rehearing.” 42 U.S.C. § 405(g);
Melkonyan v. Sullivan, 501 U.S. 89, 100, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991).
Generally, benefits may be awarded immediately “only 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); Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir.
1987).
Some courts which dealt with the same vocational issue raised here chose to remand the
case for further proceedings rather than to award benefits. For example, in Bernard L. v. Saul,
2020 WL 7027637, *6 (N.D. Ill. Nov. 30, 2020), the court opted for remand because “the VE
did not testify whether the jobs at issue were, in fact, entry-level or required a probationary
period,” thus creating an inconsistency that could be addressed on remand. Similarly, in
Sczepanski, the Court noted that the vocational expert had identified nearly three million jobs
that the claimant could perform were he not required to miss one day of work per month, and the
record was unclear as to whether a significant portion of those jobs either did not have
probationary periods or permitted absences during those periods.
Here, however, the testimony given on this issue was clear. The vocational expert did not
(as occurred in Sczepanski) testify that there were a large universe of jobs which a person with
Plaintiff’s limitations could do. She identified only three unskilled light jobs that such a person
could perform, and also testified that if that person had no tolerance for over-the-shoulder
supervision, he or she could not “weather the probationary period at any of these jobs.” (Tr. 70).
It would therefore be nothing more than speculation to conclude that, on this specific record,
there are jobs which are within the Plaintiff’s capacity to perform, and the Commissioner does
not argue otherwise. Although the Commissioner’s memorandum advances what have proved to
be unsuccessful arguments on the merits of the vocational question, that memorandum argues for
remand rather than an immediate award of benefits only because, in the Commissioner’s view,
there are factual issues to be resolved with respect to the medical evidence. No argument has
been advanced that there are factual issues remaining concerning the Plaintiff’s inability to
tolerate over-the-shoulder supervision or whether such inability precludes a person from
successfully completing the probationary period required for the jobs which the vocational expert
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identified. See Doc. 14 at 15-16.
The absence of factual inconsistencies in the record which, if resolved unfavorably to the
Plaintiff, might support a denial of benefits, was the primary reason which led the Court to order
a remand for an immediate award of benefits in both McLaughlin and McAfee (although there
were also secondary factors cited in both decisions, including the strength of the evidence
concerning disability and the age and procedural history of the cases). To the extent these other
factors are present here, the Court notes that the case is more than five years old and that Plaintiff
has raised a significant issue concerning the propriety of the ALJ’s total rejection of both the
treating source and consultative examiner opinions and the way in which the ALJ construed
some of the evidence. Further, it is significant to this Court that the ALJ made no effort to have
the vocational expert identify other light unskilled jobs which either had no probationary period
or had a probationary period which did not involve over-the-shoulder supervision even though
that issue was clearly raised by counsel’s questioning of the expert. In her decision, the ALJ also
acknowledged that “the claimant’s representative argued that work was precluded due to possible
over-the-shoulder supervision during a probationary period,” Tr. 34, so she was aware that this
was an issue which needed to be resolved (and, as noted, she purported to resolve it by
contradicting her earlier RFC finding and engaging in reasoning that lacked substantial
evidentiary support). Many of the cases cited in Sczepanski predate the ALJ’s decision, so there
was also case authority at the time holding that the inability to complete a probationary period
precluded a claimant from performing jobs which had such a requirement. The failure properly to
resolve the issue added over two years to the life of this case. Taking all of these factors into
account, and giving due regard to Judge Newman’s rulings in McLaughlin and McAfee, the Court
finds that remand for an award of benefits is the appropriate remedy here.
V. CONCLUSION AND ORDER
For the reasons stated above, the Court SUSTAINS the statement of errors (Doc. 11) and
REMANDS the case the case to the Commissioner pursuant to 42 U.S.C. §405(g), sentence four,
for an immediate award of benefits.

/s/ Terence P. Kemp
Terence P. Kemp
United States Magistrate Judge

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