Moistner v. Commissioner of Social Security

Filing 14

DECISION AND ORDER - IT IS THEREFORE ORDERED THAT: 1. Plaintiffs Statement of Errors (Doc. No. 9 ) is GRANTED; 2. The Court REVERSES the Commissioners non-disability determination; 3. No finding is made as to whether Plaintiff was under a disability within the meaning of the Social Security Act; 4. This matter is REMANDED to the Social Security Administration under Sentence Four of 42 U.S.C. § 405(g) for further consideration consistent with this Decision and Order; and 5. This case is terminated on the Courts docket. Signed by Magistrate Judge Caroline H. Gentry on 3/27/24. (pb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
RICHARD M., 1
Plaintiff,
vs.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:23-cv-00037
:
: Magistrate Judge Caroline H. Gentry
: (by full consent of the parties)
:
:
:
:
:

DECISION AND ORDER
Plaintiff filed applications for Disability Insurance Benefits and Supplemental
Security Income in August 2020. Plaintiff’s claims were denied initially and upon
reconsideration. After a hearing at Plaintiff’s request, the Administrative Law Judge
(ALJ) concluded that Plaintiff was not eligible for benefits because he was not under a
“disability” as defined in the Social Security Act. The Appeals Council denied Plaintiff’s
request for review. Plaintiff subsequently filed this action.
Plaintiff seeks an order remanding this matter to the Commissioner for the award
of benefits or, in the alternative, for further proceedings. The Commissioner asks the
Court to affirm the non-disability decision. For the reasons set forth below, this Court
REVERSES the Commissioner’s decision and REMANDS for further proceedings.

See S.D. Ohio General Order 22-01 (“The Committee on Court Administration and Case Management
of the Judicial Conference of the United States has recommended that due to significant privacy concerns
in social security cases federal courts should refer to claimants only by their first names and last
initials.”).
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I.

BACKGROUND
Plaintiff asserts that he has been under a disability since June 30, 2019. At that

time, he was thirty-nine years old. Accordingly, Plaintiff was a “younger person” under
the Social Security regulations. 20 C.F.R. §§ 404.1563(c), 416.963(c). 2 Plaintiff has a
“high school education and above.” 20 C.F.R. § 404.1564(b)(4).
The evidence in the Administrative Record (“AR,” Doc. No. 8) is summarized in
the ALJ’s decision (“Decision,” Doc. No. 8-2 at PageID 33-53), Plaintiff’s Statement of
Errors (“SE,” Doc. No. 9), the Commissioner’s Memorandum in Opposition (“Mem. In
Opp.,” Doc. No. 12), and Plaintiff’s Reply Memorandum (“Reply,” Doc. No. 13). Rather
than repeat these summaries, the Court will discuss the pertinent evidence in its analysis
below.
II.

STANDARD OF REVIEW
The Social Security Administration provides Disability Insurance Benefits and

Supplemental Security Income to individuals who are under a “disability,” among other
eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42
U.S.C. §§ 402, 423(a)(1), 1382(a). The term “disability” means “the inability to do any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for a continuous period of not
less than 12 months.” 20 C.F.R. § 404.1505(a).

The remaining citations will identify only the pertinent Disability Insurance Benefits Regulations, as
they are similar in all relevant respects to the corresponding Supplemental Security Income Regulations.

2

2

This Court’s review of an ALJ’s unfavorable decision is limited to two inquiries:
“[W]hether 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 42 U.S.C. § 405(g) (“The findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”).
“Unless the ALJ has failed to apply the correct legal standards or has made findings of
fact unsupported by substantial evidence,” this Court must affirm the ALJ’s decision.
Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020). Thus, the Court “may
not try the case de novo, nor resolve conflicts in evidence, nor decide questions of
credibility.” Id.
“Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains ‘sufficien[t] evidence’ to support the
agency’s factual determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(citation omitted). This limited standard of review does not permit the Court to weigh the
evidence and decide whether the preponderance of the evidence supports a different
conclusion. Instead, the Court is confined to determining whether the ALJ’s decision is
supported by substantial evidence, which “means—and means only—‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id.
(citation omitted). This standard “presupposes that there is a zone of choice within which
the decisionmakers can go either way, without interference by the courts.” Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986). Thus, the Court may be required to affirm the

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ALJ’s decision even if substantial evidence in the record supports the opposite
conclusion. Key v. Callahan, 109 F.3d 270, 273 (6th Cir.1997).
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). “[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.’” Id. (citations omitted). Such an error of law will require reversal even
if “the outcome on remand is unlikely to be different.” Cardew v. Comm’r of Soc. Sec.,
896 F.3d 742, 746 (6th Cir. 2018) (internal quotations and citations omitted).
III.

FACTS
A.

The ALJ’s Factual Findings

The ALJ was tasked with evaluating the evidence related to Plaintiff’s applications
for benefits. In doing so, the ALJ considered each of the five sequential steps set forth in
the Social Security regulations. See 20 C.F.R. § 404.1520. The ALJ made the following
findings of fact:
Step 1:

Plaintiff has not engaged in substantial gainful activity since June
30, 2019, the alleged onset date.

Step 2:

He has the severe impairments of chronic pancreatitis, ulcers, biliary
obstruction, gastric outlet obstruction, type-II diabetes mellitus, right
drop foot, and hypertension.

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Step 3:

He does not have an impairment or combination of impairments that
meets or equals the severity of one in the Commissioner’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4:

His residual functional capacity (RFC), or the most he can do despite
his impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235,
239 (6th Cir. 2002), consists of light work as defined in 20 CFR
§ 404.1567(b), subject to the following limitations: “Standing and/or
walking for about 4 hours in an 8-hour workday. No more than
frequent balancing. No more than occasional stooping, kneeling,
crouching, crawling, overhead reaching bilaterally, or climbing of
ramps and stairs. No climbing of ladders, ropes, and scaffolds.
[Plaintiff] should avoid unprotected heights and dangerous
machinery. [Plaintiff] would require the use of a single-point cane.”
Plaintiff is able to perform his past relevant work as a Claims Clerk I
and Insurance Customer Service Representative.

(Decision, Doc. No. 8-2 at PageID 38-48.) These findings led the ALJ to conclude that
Plaintiff does not meet the definition of disability and so is not entitled to benefits. (Id. at
PageID 48.)
B.

Plaintiff’s Digestive Impairments
1.

Subjective complaints

Plaintiff alleged disability in part due to chronic and severe abdominal pain,
chronic pancreatitis, ulcers, and a ruptured spleen. (AR, Doc. No. 8-6 at PageID 271,
287.) Plaintiff testified that he had undergone multiple abdominal surgeries and also went
to the emergency room several times for pain. (AR, Doc. No. 8-2 at PageID 73-75.) He
complained of difficulty with sitting and standing for long periods of time. (Id. at PageID
73-74.) Plaintiff estimated that he could sit for approximately thirty minutes to an hour
before needing to change positions, and stand for approximately fifteen to thirty minutes
before needing to sit. (Id. at PageID 76.) He estimated that he could comfortably lift a
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gallon of milk, and said that he could “go more than that” but had not lifted more than
fifteen pounds in the last year and a half. (Id.) Plaintiff had daily flare-ups of pancreatitis
and was most comfortable “with a heating pad on [his] stomach laying semi-flat in a
recliner.” (Id. at PageID 74.)
2.

Medical records

On September 15, 2019, Plaintiff went to a hospital emergency room complaining
of upper abdominal and epigastric pain. (AR, Doc. No. 8-7 at PageID 405.) After a CT
scan of the abdomen and pelvis showed findings suggestive of chronic pancreatitis,
Plaintiff was discharged without being admitted. (Id. at PageID 408-09.) He returned two
days later and was admitted to the hospital for gastrointestinal bleeding. (AR, Doc. No. 89 at PageID 1044.) Plaintiff underwent surgical repair of a perforated duodenal ulcer with
over-sewing of the gastroduodenal artery. (Id. at PageID 1055; AR, Doc. No. 8-8 at
PageID 682.) He remained in the hospital for treatment after post-surgical imaging
showed a leak. (AR, Doc. No. 8-8 at PageID 682.) Plaintiff was discharged to an acute
long-term care hospital facility on October 4, 2019. (Id. at PageID 682; AR, Doc. No. 8-7
at PageID 318.) He was eventually discharged from that facility on November 6, 2019.
(AR, Doc. No. 8-7 at PageID 318, 403.)
Plaintiff continued to seek treatment for complaints of abdominal pain. He was
hospitalized again for abdominal pain and acute pancreatitis from January 9 to January
11, 2020 (AR, Doc. No. 8-9 at PageID 1109), from February 25 to February 28, 2020 (id.
at PageID 1128, 1140), from March 11 to March 14, 2020 (id. at PageID 1149, 1165),
and from May 21 to May 25, 2020 (id. at PageID 1174, 1191). On July 5, 2020, Plaintiff
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was treated overnight in the emergency room for severe abdominal pain complaints, and
was discharged with instructions to follow up with his gastrointestinal specialist. (AR,
Doc. No. 8-9 at PageID 1223, 1236.) Plaintiff subsequently underwent an antrectomy
and proximal duodenectomy on August 6, 2020. (AR, Doc. No. 8-8 at PageID 648-51.)
He was hospitalized through at least August 17, 2020. (See id. at PageID 649.)
Plaintiff followed up with primary care physician Derek Thomson, D.O., who
prescribed pain medication. (AR, Doc. No. 8-10 at PageID 1476.) Records dated through
December 2020 indicate that Plaintiff reported decreased abdominal pain and was doing
well on medication. (See, e.g., AR, Doc. No. 8-10 at PageID 1472-76.)
However, in January 2021, Plaintiff again experienced severe abdominal pain.
(AR, Doc. No. 8-10 at PageID 1471.) He was treated overnight in the emergency room
on February 13, 2021 and again on March 6, 2021. (AR, Doc. No. 8-9 at PageID 1241,
1258, 1263, 1271.) He was hospitalized for epigastric abdominal pain and acute-onchronic pancreatitis on March 19, 2021. (AR, Doc. No. 8-9 at PageID 1273.) Plaintiff
was transferred to the Indiana University Hospital on March 21, 2021 after a workup
showed sepsis and a suspected infected pancreatic pseudocyst. (Id. at PageID 1287.) He
apparently underwent biliary drain tube placement at that time. (See AR, Doc. No. 8-9 at
PageID 1302; AR, Doc. No. 8-11 at PageID 1684.) He returned to Indiana University
Hospital in July 2021 for replacement of the biliary drain, which was removed in August
2021. (AR, Doc. No. 8-11 at PageID 1409, 1493, 1522, 1599.)
Plaintiff began pain management treatment with Ahsan Usmani, M.D. on March 4,
2021. (AR, Doc. No. 8-8 at PageID 1031.) When Plaintiff saw Dr. Usmani in follow-up
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visit on March 31, 2021, he reported improved pain. (Id.) Dr. Usmani administered
bilateral abdominal trigger point injections on May 15, 2021, but Plaintiff reported only a
fifty-percent improvement in his abdominal pain that lasted only three to four days. (Id. at
PageID 1302.) Subsequent records from Dr. Thomson indicate that he decreased the
dosages of Plaintiff’s pain medication after Plaintiff reported that he was generally doing
well on it. (AR, Doc. No. 8-10 at PageID 1461-65.)
3.

The ALJ’s discussion of Plaintiff’s digestive impairments

The ALJ discussed Plaintiff’s subjective complaints and the objective medical
evidence regarding Plaintiff’s digestive impairments when formulating the RFC.
(Decision, Doc. No. 8-2 at PageID 41-46.) The ALJ concluded that although Plaintiff’s
impairments could reasonably be expected to cause some of his symptoms, the “intensity,
persistence and limiting effects of these symptoms are not entirely consistent with the
medical evidence and other evidence in the record . . . .” (Id. at PageID 44.) Specifically,
the ALJ explained that Plaintiff’s symptoms “have improved significantly” since 2019.
(Id.) He further explained that “although [Plaintiff’s] impairments and their symptoms are
severe, they are not entirely intractable or untreatable, and [Plaintiff] is able to improve
his condition with appropriate treatment.” (Id.)
When formulating the RFC, the ALJ explained that he accounted for Plaintiff’s
statements regarding his alleged pain and limitation “to the extent that [they] are
consistent with the record.” (Decision, Doc. No. 8-2 at PageID 43.) The ALJ restricted
Plaintiff to performing a reduced range of light exertional work that limited the amount of

8

time spent standing and/or walking to four hours per day. (Id.) The ALJ also limited
Plaintiff to occasional overhead reaching bilaterally due to his pain complaints. (Id.)
IV.

LAW AND ANALYSIS
A.

Plaintiff’s Assignments of Error

Plaintiff asserts four errors: 1) the ALJ omitted a limitation for absenteeism in the
RFC; 2) the ALJ’s evaluation of the medical opinion evidence is “inadequate,
unsupported, and unreasonable”; 3) the ALJ failed to “fully and fairly develop the record
and forms his own medical opinions”; and 4) the decision is not supported by substantial
evidence. (SE, Doc. No. 9 at PageID 1754-55.) Finding that the ALJ’s RFC is not
supported by substantial evidence, the Court does not address Plaintiff’s other alleged
errors and instead instructs the ALJ to address all of them on remand.
The Court finds that the ALJ erred in at least two respects when formulating the
RFC. First, the ALJ did not explain how (or whether) the RFC accommodates the impact
of Plaintiff’s absences caused by his digestive impairments. The ALJ’s broad assertion
that the range of work in the RFC accounts for all of Plaintiff’s impairments and pain
complaints is unsupported by a logical bridge to an analysis of this evidence. (Decision,
Doc. No. 8-2 at PageID 43-44.) Second, the ALJ’s reliance on his conclusion that
Plaintiff’s symptoms “have improved significantly” shows that he erroneously focused on
a limited time period and did not account for the entire time period since the alleged
disability onset date. For both reasons, the Court finds that the RFC is not supported by
substantial evidence. The Court will therefore reverse the Commissioner’s decision and
remand for further proceedings.
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B.

The ALJ’s RFC Is Not Supported By Substantial Evidence
1.

Applicable law

Determination of the RFC is a task reserved for the ALJ. 20 C.F.R. § 404.1546(c);
see also Webb v. Comm’r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004) (“[T]he ALJ is
charged with the responsibility of evaluating the medical evidence and the claimant’s
testimony to form an ‘assessment of his [RFC]’”). A claimant’s RFC describes the most
he can do in a work setting despite his physical and mental limitations. 20 C.F.R.
§ 404.1545(a)(1). When formulating the RFC, the ALJ must consider the claimant’s
“ability to meet the physical, mental, sensory, and other requirements of work.” 20 C.F.R.
§ 404.1545(a)(4). The ALJ must base the RFC on all relevant evidence in the record,
including the claimant’s descriptions of his limitations and symptoms, objective medical
evidence, medical opinions, other medical evidence, evidence from non-medical sources,
and prior administrative medical findings. See 20 C.F.R. § 404.1545(a)(1)-(5).
The ALJ is required to consider evidence from the entire relevant time period
when formulating the RFC. E.g., White v. Comm’r of Soc. Sec., No. 3:21-cv-762, 2022
U.S. Dist. LEXIS 140674, *47 (N.D. Ohio June 1, 2022) (Knapp, M.J.), affirmed by 2022
U.S. Dist. LEXIS 139178 (N.D. Ohio Aug. 4, 2022) (Knepp, D.J.). As Magistrate Judge
Knapp explained, “[w]hile the substantial evidence standard is deferential, the Sixth
Circuit has emphasized that the chief limitation to that deference ‘is the requirement that
all determinations be made based upon the record in its entirety.’” 2022 U.S. Dist. LEXIS
140674, *47 (quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 249 (6th Cir. 2007)).

10

Thus, an ALJ should not “unduly concentrate on one single aspect of the claimant’s
history.” Rogers, 486 F.3d at 249.
Notably, “[t]he responsibility for determining a claimant's [RFC] rests with the
ALJ, not a physician.” Poe v. Comm'r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009)
(citing 20 C.F.R. § 404.1546(c)). An ALJ is required to consider medical opinion
evidence when determining the RFC, but he is not required to adopt them or adopt any
such findings verbatim. Poe, 342 F. App’x at 156-57 (6th Cir. 2009). In addition, “[t]he
determination of a plaintiff’s RFC is entirely within the purview of the ALJ, and this
Court will defer to that finding even if there is substantial evidence in the record that
would have supported an opposite conclusion.” Rieder v. Comm’r of Soc. Sec., No. 2:20CV-05858, 2021 WL 5881784, at *5 (S.D. Ohio Dec. 13, 2021) (internal quotations and
citation omitted) (Preston Deavers, M.J.).
Nevertheless, an ALJ is required “to show his or her work.” Scott K. v. Comm’r of
the SSA, No. 3:21-CV-00129, 2022 U.S. Dist. LEXIS 175673, at *11 (S.D. Ohio Sept.
27, 2022) (Silvain, M.J.) (internal citation omitted). Thus, “[t]his Court cannot uphold an
ALJ’s decision, even if there if there is enough evidence in the record to support the
decision, where the reasons given by the trier of fact do not build an accurate and logical
bridge between the evidence and the result.” Fleischer v. Astrue, 774 F. Supp. 2d 875,
877 (N.D. Ohio 2011) (cleaned up) (internal quotations and citation omitted). See also
Danyel P. v. Comm’r of Soc. Sec., No. 2:21-CV-02405, 2022 WL 1514170, at *6 (S.D.
Ohio May 13, 2022) (Preston Deavers, M.J.) (ALJ’s “inexplicable and illogical
consistency” warranted remand); Kimberly S. v. Comm’r of Soc. Sec., No. 3:21-CV11

00310, 2022 WL 17820565, at *3 (S.D. Ohio Dec. 20, 2022) (Silvain, M.J.) (ALJs must
“provide a coherent explanation of [their] reasoning . . . in order to provide sufficient
rationale for a reviewing adjudicator or court”); Hardiman v. Comm’r of Soc. Sec., No.
2:12-CV-00508, 2013 WL 3762266, at *5 (S.D. Ohio July 16, 2013) (Preston Deavers,
M.J.) (remanding case on the ground that “the ALJ’s decision is internally inconsistent
and incomplete”).
2.

The ALJ did not build a logical bridge between the evidence of
Plaintiff’s absences and the RFC

The ALJ erred by failing to explain how the RFC accommodates Plaintiff’s multiday hospitalizations caused by his digestive impairments. The absence of this logical
bridge leads the Court to conclude that the RFC is not supported by substantial evidence.
When determining whether a claimant is disabled, an ALJ is required to consider
whether he or she is able to “do sustained work activities in an ordinary work setting on a
regular and continuing basis." SSR 96-8p, 1996 SSR LEXIS 5, at *5 (S.S.A. July 2,
1996) (emphasis in original). “A ‘regular and continuing basis’ means 8 hours a day, for
5 days a week, or an equivalent work schedule.” Id. Therefore, in addition to considering
the impact of a claimant’s physical and mental limitations, the ALJ must also consider
the impact of impairment-related treatment—including frequency, duration, disruption to
routine, and medication side effects—when determining whether a claimant is disabled.
SSR 96-8p, 1996 SSR LEXIS 5, at *13-14. E.g., Dennis v. Kijakazi, No. 21-2078, 2023
WL 2945903, at *5-6 (4th Cir. Apr. 14, 2023) (ALJ reversibly erred by failing to address
evidence regarding the claimant’s absenteeism); Kangas v. Bowen, 823 F.2d 775, 778 (3d
12

Cir. 1987) (ALJ should have considered the claimant’s six hospitalizations in a sixteenmonth period when formulating an RFC finding); Laracuente v. Colvin, 212 F. Supp. 3d
451, 466-67 (S.D.N.Y. 2016) (ALJ erred by not considering frequency of medical
treatment in determining that plaintiff would not be absent from work more than three
days per month); Bey v. Comm’r of Soc. Sec., 21-CV-7832, 2023 U.S. Dist. LEXIS
15526, at *37 (S.D.N.Y. Jan. 30, 2023) (“The ALJ’s failure to address relevant evidence
bearing upon the question of Plaintiff’s attendance amounts to legal error.”).
The Court acknowledges that an ALJ’s decision “need not be so comprehensive as
to account with meticulous specificity for each finding and limitation, nor is the ALJ
required to discuss every piece of evidence in the record.” Correa v. Comm’r of Soc. Sec.,
No. 1:23-cv-685, 2023 U.S. Dist. LEXIS 231766, at *31 (N.D. Ohio Dec. 14, 2023)
(citing Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th Cir. 2012); Simons v. Barnhart, 114
F. App’x 727, 733 (6th Cir. 2004)). Nevertheless, the ALJ must “provide sufficient
explanation for the claimant and any reviewing court to ‘trace the path of his reasoning’”
and explain “with specificity” how the evidence supports the RFC limitations. Correa,
2023 U.S. Dist. LEXIS 231766, at *31-32 (citing Stacey v. Comm’r of Soc. Sec., 451 F.
App’x 517, 519 (6th Cir. 2011); Bailey v. Comm’r of Soc. Sec., No. 98-3061, 1999 U.S.
App. LEXIS 1621, at *12 (6th Cir. Feb, 2, 1999); Bledsoe v. Comm’r of Soc. Sec., No.
1:09-cv-564, 2011 U.S. Dist. LEXIS 11925, at *12 (S.D. Ohio Feb. 8, 2011)).
Here, the ALJ did acknowledge some of Plaintiff’s hospitalizations and
emergency room visits for his digestive issues. (Decision, Doc. No. 8-2 at PageID 43.)
But the ALJ failed to acknowledge the frequency or extent of Plaintiff’s treatment,
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including the significant fact that Plaintiff was treated in an emergency room or hospital
for his digestive issues for a total of approximately seventy-five days during the period
between September 2019 and March 2021. (See AR, Doc. No. 8-7 at PageID 318, 40305; AR, Doc. No. 8-8 at PageID 648-651, 682; AR, Doc. No. 8-9 at PageID 1044-55,
1109, 1128, 1140, 1149, 1165, 1174, 1191, 1223, 1236, 1241, 1263, 1273, 1287, 1302;
AR, Doc. No. 8-11 at PageID 1684.) The ALJ apparently did not consider these absences
and certainly did not explain his decision not to account for them in the RFC. The ALJ’s
failure to build a logical bridge between the evidence in this regard and his conclusions
prevents the Court from engaging in meaningful judicial review, and leads the Court to
conclude that the RFC is not supported by substantial evidence.
3.

The ALJ did not base the RFC upon evidence from the entire
time period at issue.

The ALJ also erred by failing to account for evidence from the entire relevant time
period, and instead relying on an improvement in Plaintiff’s condition to formulate an
RFC for a reduced range of light work.
As an initial matter, none of the evidence cited in the ALJ’s symptom severity
analysis supports his conclusion that Plaintiff’s digestive symptoms “have improved
significantly” with medication. (See Decision, Doc. No. 8-2 at PageID 44.) One of the
cited records is a report from a CT scan of the abdomen and pelvis that was taken during
a February 2020 emergency room visit for abdominal pain. (Id. (citing AR, Doc. No. 8-9
at PageID 1132); see also AR, Doc. No. 8-9 at PageID 1128-42.) The report references a
“[m]ild degree of improvement in the degree of abnormal attenuation within the upper
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abdomen” compared to January 2020 imaging, but does not mention an improved
response to medication. (AR, Doc. No. 8-9 at PageID 1132.) In fact, on the next page of
the report, the attending emergency room physician noted that Plaintiff experienced only
“brief improvement” in his pain after receiving pain medications. (Id. at PageID 1133.)
The physician further stated that Plaintiff’s pain was not controlled adequately in the
emergency department and that he was being admitted “due to uncontrolled pain.” (Id.)
The ALJ also cites a July 2020 discharge summary for an overnight hospital stay
for abdominal pain. (Decision, Doc. No. 8-2 at PageID 44 (citing AR, Doc. No. 8-8 at
PageID 652; AR, Doc. No. 8-9 at PageID 1237).) The cited records state: “Patient was
given Dilaudid and Zofran, and this seemed to resolve his symptoms.” (Id., citing AR,
Doc. No. 8-8 at PageID 652.) But the ALJ ignores the fact that Plaintiff’s abdominal pain
returned shortly after discharge, and that he underwent a hepaticojejunostomy, distal
gastrectomy with gastrojejunostomy, and proximal duodenectomy later in July. (See AR,
Doc. No. 8-8 at PageID 649; AR, Doc. No. 8-10 at PageID 1476.)
Finally, the ALJ relies on a March 2021 record to conclude that “[Plaintiff]
reported that Dr. Usmani’s trigger point injection caused a ‘50% improvement in
abdominal pain,’ although this did not improve his functional level (Exhibit 6F at 2).”
(Decision, Doc. No. 8-2 at PageID 44 (citing AR, Doc. No. 8-9 at PageID 1302).) This
summary mischaracterizes Plaintiff’s statement to his provider. Although Plaintiff did
report a fifty-percent improvement in his pain following the bilateral abdominal trigger
point injections, he also said that the relief lasted for only three to four days, and reported

15

a current pain level of seven out of ten (with ten being the worst pain). (AR, Doc. No. 8-9
at PageID 1302.) This record, too, does not support the ALJ’s conclusion.
Moreover, the ALJ’s conclusion that Plaintiff’s digestive condition improved with
treatment is not based on the entire record. The medical records show only a four- to fivemonth period of improvement in Plaintiff’s abdominal pain between the August 2020
surgery and Plaintiff’s complaints of pain in January 2021. Other than that four- to fivemonth period in late 2020, the records do not document any significant or sustained
improvement in Plaintiff’s digestive condition until after March 2021. The ALJ did not
explain how a light RFC would be reasonable earlier during the relevant time period,
when Plaintiff was hospitalized on approximately seven occasions and treated in the
emergency department (sometimes overnight) approximately four times—for a total of
approximately seventy-five days between September 2019 and March 2021.
Therefore, the ALJ did not build a logical bridge between the overall evidence and
his conclusions. Instead, by limiting his RFC analysis to Plaintiff’s improved condition at
the end of the relevant time period, the ALJ failed to base the RFC “upon the record in its
entirety.” Rogers, 486 F.3d at 249.
This error is not harmless. Plaintiff argues that the evidence supports stricter RFC
limitations (for absences) that are work-preclusive. (SE, Doc. No. 9 at PageID 1755-56;
Reply, Doc. No. 13 at PageID 1791-92.) The Vocational Expert testified at the October
2021 hearing that a hypothetical individual of Plaintiff’s age, education, work experience,
and RFC—but with an additional limitation that the individual would be absent three
days per month—would be unable to perform competitive work. (AR, Doc. No., Doc.
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No. 8-2 at PageID 90.) Therefore, the ALJ’s failure to explain why he did not include
RFC limitations to account for Plaintiff’s digestive impairments is not a harmless error.
For these reasons, the RFC assessment is not supported by substantial evidence
and remand is warranted.
C.

On Remand, The ALJ Should Also Consider Whether A Closed
Period of Disability Was Warranted

On remand, the ALJ should also consider whether a closed period of disability
benefits was warranted. A claimant must meet the twelve-month durational requirement
before he can be found disabled. 42 U.S.C. § 423(d)(1)(A). The Sixth Circuit has held
that while “[t]he Act itself does not provide for a closed period of benefits . . . we think it
clear that such a closed period of benefits may be awarded.” Myers v. Richardson, 471
F.2d 1265, 1267 (6th Cir. 1972). Thus, a claimant who satisfies the twelve-month
durational requirement “may be entitled to benefits from the time his disability
commences until such time as the disability ceases.” Lang v. Sec'y of Health & Hum.
Servs., No. 88-1561, 1989 WL 40188, at *2 (6th Cir. 1989) (citing Howse v. Heckler, 782
F.2d 626 (6th Cir.1986)).
An ALJ need not use any “magic words” to indicate that he has considered
whether a closed period of disability is warranted. Sielaff v. Comm’r of Soc. Sec., No.
1:10-CV-1571, 2012 WL 567614, at *1 (N.D. Ohio Feb. 21, 2012). But the ALJ must
nevertheless consider “every period during which [a claimant] may have been disabled.”
Cash v. Comm’r of Soc. Sec., No. 3:16-CV-175, 2017 WL 3473813, at *4 (S.D. Ohio

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Aug. 14, 2017) (Newman, M.J.) (citation omitted), report and recommendation adopted,
No. 3:16-cv-175, 2017 WL 3769371 (S.D. Ohio Aug. 29, 2017) (Rice, D.J.).
Here, given the ALJ’s heavy reliance on evidence showing that Plaintiff’s
condition improved, it is evident that he failed to consider whether Plaintiff might be
entitled to a closed period of disability. He should consider this issue on remand.
VI.

REMAND
Under Sentence Four of 42 U.S.C. § 405(g), the Court has authority to affirm,

modify, or reverse the Commissioner’s decision “with or without remanding the cause for
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand
under Sentence Four may result in the need for further proceedings or an immediate
award of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041
(6th Cir. 1994). The latter is warranted where the evidence of disability is overwhelming
or where the evidence of disability is strong while contrary evidence is lacking. Faucher
v. Sec’y of Health & Hum. Servs., 17 F.3d 171, 176 (6th Cir. 1994).
A judicial award of benefits is unwarranted in the present case because the
evidence of disability is neither overwhelming nor strong while contrary evidence is
lacking. Faucher, 17 F.3d at 176. However, Plaintiff is entitled to an Order remanding
this case to the Social Security Administration pursuant to Sentence Four of Section
405(g) for the reasons stated above. On remand, the ALJ should further develop the
record as necessary, particularly as to absenteeism and the time period prior to March
2021, and evaluate the evidence of record under the applicable legal criteria mandated by
the Commissioner’s regulations and rulings and governing case law. The ALJ should
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evaluate Plaintiff’s disability claim under the required five-step sequential analysis to
determine anew whether Plaintiff was under a disability and whether his applications for
Disability Insurance Benefits and Supplemental Security Income should be granted.
IT IS THEREFORE ORDERED THAT:
1.

Plaintiff’s Statement of Errors (Doc. No. 9) is GRANTED;

2.

The Court REVERSES the Commissioner’s non-disability determination;

3.

No finding is made as to whether Plaintiff was under a “disability” within
the meaning of the Social Security Act;

4.

This matter is REMANDED to the Social Security Administration under
Sentence Four of 42 U.S.C. § 405(g) for further consideration consistent
with this Decision and Order; and

5.

This case is terminated on the Court’s docket.
s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge

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