Strimel v. Social Security Administration, Commissioner of (JRG2)

Filing 22

MEMORANDUM OPINION AND ORDER: Based upon the foregoing, Plaintiff's motion for judgment on the pleadings [Doc. 18] is GRANTED and the Commissioner's motion for summary judgment [Doc. 20] is DENIED for the reasons stated herein. The matter is remanded for proceedings in accordance with this Order. See Memorandum Opinion and Order for details. Signed by Magistrate Judge Clifton L Corker on 9/15/2017. (JCK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
GREENEVILLE
JASON E. STRIMEL,

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Plaintiff,
v.
NANCY BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

CIV. NO. 2:16-cv-226-MCLC

MEMORANDUM OPINION AND ORDER
This matter is before the United States Magistrate Judge with consent of the parties and by
order of reference [Doc. 17] for disposition and entry of a final judgment. Plaintiff’s application
for Title II Disability Insurance Benefits and/or Title XVI Supplemental Security Income under
the Social Security Act was administratively denied following a hearing before an Administrative
Law Judge (“ALJ”). This is an action for judicial review of the Commissioner’s final decision
pursuant to 42 U.S.C. § 405(g). Plaintiff filed a Motion for Judgment on the Pleadings [Doc. 18]
and Defendant filed a Motion for Summary Judgment [Doc. 20].
I.

APPLICABLE LAW – STANDARD OF REVIEW
The scope of review of the Commissioner’s findings is narrow. The Court is confined to

determining (1) whether substantial evidence supported the factual findings of the ALJ and (2)
whether the Commissioner conformed with the relevant legal standards. 42 U.S.C. § 405(g); see
Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). “Substantial
evidence” is defined as evidence that is more than a mere scintilla and is such relevant evidence
as a reasonable mind might accept as adequate to support the challenged conclusion. Richardson
v. Perales, 402 U.S. 389, 401 (1971). It must be enough to justify, if the trial were to a jury, a
refusal to direct a verdict when the conclusion sought to be drawn is one of fact for the jury.

1

Lemaster v. Sec’y of Health & Humans Servs., 802 F.2d 839, 841 (6th Cir. 1986). The Court may
not try the case de novo nor resolve conflicts in the evidence, nor decide questions of credibility.
Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if the reviewing court were to resolve
the factual issues differently, the Commissioner’s decision must stand if supported by substantial
evidence. Listenbee v. Sec’y of Health & Human Services, 846 F.2d 345, 349 (6th Cir. 1988).
However, a decision supported by substantial evidence “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 v. Comm’r of Soc.
Sec., 478 F.3d 742, 746 (6th Cir. 2007).
A claimant must be under a “disability” as defined by the Social Security Act to be eligible
for benefits. Within the statutory meaning, a “disability” includes physical and/or mental
impairments that are both “medically determinable” and severe enough to prevent the claimant
from (1) performing his past job and (2) engaging in “substantial gainful activity” that is available
in the regional or national economies. 42 U.S.C. § 423(a).
A five-step sequential evaluation process applies in disability determinations. 20 C.F.R. §§
404.1520 & 416.920. A dispositive finding at any step ends a review. See Colvin v. Barnhart, 475
F.3d 727, 730 (6th Cir. 2007). The complete 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 [Residual Functional Capacity], 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,

2

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) & 416.920(a)(4).
It is the claimant’s burden to establish an entitlement to benefits by proving the existence
of a disability under 42 U.S.C. §§ 423(d)(1)(A) or 1382c(a)(3)(A). See Boyes v. Sec’y of Health
& Human Servs., 46 F.3d 510, 512 (6th Cir. 1994). The Commissioner has the burden to establish
the claimant’s ability to work at step five. Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
II.

RELEVANT FACTS AND PROCEDURAL OVERVIEW

A.

Procedural History
Jason E. Strimel (“Strimel”), was found to have the severe impairments of degenerative

disc disease and borderline intellectual functioning per the Decision.1 (Doc. 13, Transcript p.15)
(reference to “Tr” and the page denote the administrative record). He was a younger person under
the regulations at the time of his January 8, 2013 application, 20 C.F.R. §§ 404.1563 and 416.963.
He alleged a disability onset date of December 15, 2011, (Tr. 12), and his insured status expired
on December 31, 2011. (Tr. 15).
Strimel’s claims were initially denied on June 27, 2013, and again upon reconsideration on
October 14, 2013. (Tr. 107). An ALJ conducted a hearing on December 11, 2014. Plaintiff
testified; a Vocational Expert (“VE”) was present but did not testify. (Tr. 30-38).
The ALJ conducted the five-step analysis in evaluating the claims. The ALJ’s Decision,
(Tr. 13), made several findings, including that Strimel was not disabled:
1.

1

The claimant meets the insured status requirements of the Social Security
Act through December 31, 2011;

Plaintiff’s application and submissions indicate he has a kidney condition and scoliosis.

3

2.

The claimant has not engaged in substantial gainful activity since December
15, 2011, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et
seq.);

3.

The claimant has the following severe impairments: degenerative disc
disease and borderline intellectual functioning (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 to perform medium work
as defined in 20 CFR 404.1567(c) and 416.967(c) except it should be
unskilled and entry-level work;

6.

The claimant has no past relevant work (20 CFR 404.1565 and 416.965);

7.

The claimant was born on September 26, 1983, and was 28 years old, which
is defined as a younger individual age 18-49, on the alleged disability onset
date (20 CFR 404.1563 and 416.963);2

8.

The claimant has a limited education and is able to communicate in English
(20 CFR 404.1564 and 416.964);

9.

Transferability of job skills is not an issue because the claimant does not
have past relevant work (20 CFR 404.1568 and 416.968);

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a));

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from December 15, 2011, though the date of this decision (20
CFR 404.1520(g) and 416.920(g)).

(Tr. 15-24).3
The Appeals Council denied Plaintiff’s review request. (Tr. 2).

2
3

Strimel remained categorized as a younger person at the time of the Decision.
A discussion follows many of the findings. Such discussion is not repeated here unless necessary.
4

B.

Evidence in the Record
The Decision reviews and discusses the underlying medical evidence. (Tr. 15-19).

Strimel’s brief summarizes the record evidence [Doc. 19, pp. 2-5] and the Commissioner’s brief
does likewise [Doc. 21, pp. 2-7]. The transcript contains records from the consultants who
examined Strimel, Wayne P. Gilbert, M.D. regarding physical conditions and Arthur Stair, M.A.
and Charlton Stanley, Ph.D. for mental conditions. (Tr. 257-62). State agency reviewers also
reviewed and opined about Strimel’s conditions. (Tr. 57-94). Reference to the evidence herein,
both medical and otherwise, is only set forth as necessary.
III.

ANALYSIS
On appeal, the primary issue for review is whether substantial evidence supports the

Commissioner’s decision. Plaintiff Strimel argues the ALJ erred in the analysis of his subjective
complaints and credibility, erred in finding he has the residual function capacity to perform a full
range of medium work, and erred by relying upon the Medical-Vocational Guidelines and Grid
instead of a vocational expert given his mental impairments and restrictions. [Doc. 19, pp. 7-10].
A.

Evaluation of Subjective Complaints
“An ALJ is not required to accept a claimant's subjective complaints and may properly

consider the credibility of a claimant when making a determination of disability.” Jones v. Comm'r
of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003) (citations omitted). Further, “[a]n ALJ’s “findings
based on the credibility of the applicant are to be accorded great weight and deference, particularly
since an ALJ is charged with the duty of observing a witness’s demeanor and credibility.” Walters
v. Comm’r of Soc. Sec., 127 F. 3d 525, 531 (6th Cir. 1997). The assessment of credibility must be
supported by substantial evidence. Id.
With regard to cases in which the symptoms of the underlying conditions are the claimed
cause of the disability, as is the situation here, the Sixth Circuit has offered additional guidance
relative to assessing credibility and subjective complaints:
5

Where the symptoms and not the underlying condition form the basis of the
disability claim, a two-part analysis is used in evaluating complaints of disabling
pain. 20 C.F.R. § 416.929(a); Buxton v. Halter, 246 F.3d 762, 773 (6th Cir.2001);
Felisky v. Bowen, 35 F.3d 1027, 1038–39 (6th Cir.1994). First, the ALJ will ask
whether the there is an underlying medically determinable physical impairment that
could reasonably be expected to produce the claimant's symptoms. 20 C.F.R. §
416.929(a). Second, if the ALJ finds that such an impairment exists, then he must
evaluate the intensity, persistence, and limiting effects of the symptoms on the
individual's ability to do basic work activities. Id. Relevant factors for the ALJ to
consider in his evaluation of symptoms include the claimant's daily activities; the
location, duration, frequency, and intensity of symptoms; factors that precipitate
and aggravate symptoms; the type, dosage, effectiveness, and side effects of any
medication taken to alleviate the symptoms; other treatment undertaken to relieve
symptoms; other measures taken to relieve symptoms, such as lying on one's back;
and any other factors bearing on the limitations of the claimant to perform basic
functions. Id.; see also Soc. Sec. Rul. 96–7p, 1996 WL 374186, at *2–3 (July 2,
1996) (Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in
Disability Claims: Assessing the Credibility of an Individual's Statements).
Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007).
The ALJ followed the aforementioned process4 and found that Plaintiff has underlying
medically determinable impairments relating to his back (Tr. 15). The ALJ then evaluated the
intensity, persistence and limiting effects of the claimed symptoms on the ability to do basic work
activities pursuant to the relevant factors identified in Rogers.
The ALJ primarily relied on the dearth of medical evidence and treatment history5 to
support his determinations as to subjective complaints and credibility as contemplated SSR 96-7p6

4

Plaintiff sought disability based upon two medical issues, “problems with kidneys” and scoliosis.
(Tr. 46). The ALJ found one severe medical impairment, specifically degenerative disc disease,
along with borderline intellectual functioning.

5

Plaintiff indicated he lacks health insurance during his testimony in response to his counsel’s
question but did not explain how or whether this has affected his treatment or assert that his insured
status affected treatment sought prior to or subsequent to the alleged disability onset date. (Tr. 35).
He does not raise error here on this topic, however.
6

This Ruling was in effect at the time of the hearing and Decision, but was subsequently
superseded by SSR 16-3p on March 28, 2016.

6

and Rogers. The Sixth Circuit authority specifically addresses the relationship of alleged pain to
sparse treatment: “When a claimant alleges pain so severe as to be disabling, there is a reasonable
expectation that the claimant will seek examination or treatment. A failure to do so may cast doubt
on assertions of disabling pain.” Strong v. Soc. Sec. Admin., 88 F.App’x 841, 846 (6th Cir.
2004)(citations omitted); see also Myatt v. Comm’r of Soc. Sec., 251 F.App’x. 332 (6th Cir. 2007)
(explaining that a modest treatment regimen is inconsistent with total disability).
Plaintiff’s medical records are very limited; there are no mental health records except for
the consultative report.7 (Tr. 244-384). The few records referring to a back condition address little
about history or symptoms, beyond pain, and do not address treatment. (Tr. 367). In fact, Strimel
sought no treatment for his back until 2014. (Tr. 16, 264, 359).
The absence of efforts by Plaintiff to obtain treatment, in the face of the reasonable
expectation that he would seek treatment and pain mitigation, undermines Plaintiff’s claims of
disabling pain and limitations. The same is true of Plaintiff’s erratic treatment for his kidney
conditions, which were the primary issues identified in the February and October 2013 function
reports he completed for the Social Security Administration (Tr. 198-205, 214-21). The failure to
pursue recommended kidney evaluation and care for multiple months, (Tr. 335, 318-22), and lack
of compliance with prescriptions issued to him or pursuit of medication to control symptoms also
undermine Plaintiff’s assertions. (Tr. 36-37).
The ALJ addressed Plaintiff’s activities of daily living in conjunction with his subjective
complaints. Strimel submitted information about such activities as a part of his disability
application. (Tr. 197-202). His activities include meal preparation, visiting his mother, spending
time with his girlfriend and doing things such as walking, throwing a ball, or going to the store.

7

Many of the documents in the medical section of the transcript contain no medical data, such as
general discharge instructions, or medical data that is not particularly pertinent here, such as blood
test results. (Tr. 247-48, 280-83).

7

(Tr. 197-202, 214-18). The ALJ noted these activities and then aptly observed that this range of
activities are not limited in the manner one would expect in light of the complaints of disabling
symptoms and limitations. (Tr. 22).
Work history may be weighed in evaluating credibility and intensity and persistence of
symptoms. See 20 C.F.R. § 404.1529(c)(3) & 416.929(c)(3). A good work history and attempts to
continue working in spite of disability may support credibility, see White v. Comm’r of Soc. Sec.,
312 F.App’x 779, 789 (6th Cir. 2009), while poor work history “might stem from [an] inability to
work as easily as [an] unwillingness to work.” Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998).
Strimel’s history prior to the alleged disability onset in December 2011 began in 2003 when
he was about age 20. (Tr. 187). The history is sporadic with several full years between 2003 and
2011 in which no employment was identified on Plaintiff’s application and no earnings listed on
his earnings reports. (Tr. 168-71, 187). The ALJ properly noted the sporadic work history raised a
question as to whether his ongoing unemployment was actually the result of medical issues. (Id.)
The ALJ ultimately determined Strimel does not have medically determinable impairments
that would be expected to result in the restrictions claimed, a topic discussed at greater length in
Section B herein, and that the allegations of disabling pain and symptoms were not entirely credible
or supported by the evidence. (Id.) The Court concurs with this analysis and gives great weight to
same per the case authority. Thus, the record contains substantial evidence to support the Decision.
B.

Residual Functional Capacity for Medium Work
Plaintiff alleges the finding that he has the residual functional capacity (“RFC”) to perform

medium jobs was not supported by the record evidence or the opinion of the consulting medical
examiner, Dr. Wayne Gilbert. He also argues that the state agency reviewers opined that Plaintiff
had postural limitations and the ALJ erroneously failed to consider same. [Doc. 19, p. 9].

8

In April 2014, Dr. Gilbert examined Plaintiff and diagnosed scoliosis. While noted a
congenital obstruction of the uteropelvic junction was reported, he did not indicate he concurred.
(Tr. 265).
Dr. Gilbert’s report described the results of his testing of Plaintiff’s strength, range of
motion and physical movements. (Tr. 265).

Plaintiff had a full range of motion in his upper

extremities and shoulders, cervical spine, elbows, wrists, hands and fingers, hips, knees and ankles,
while experiencing some pain and limitation in lumbar spine flexion. (Tr. 265). He had a range of
strengths in his major muscle groups and was able to stand on either foot and manipulate the
opposite foot, squat and stand back up, and walk on his heels and toes. (Id.) After listing these test
results, Dr. Gilbert identified Strimel’s “anticipated limitations”:
The patient can sit for 30 minutes, stand for 10 to 15 minutes. He can walk 50 feet.
He can lift 10 pounds and he can carry 10 pounds occasionally. [T]hese physical
complaints may be exaggerated. It is anticipated that, if he does not have correction
of the reported urinary problem, that he could well develop renal failure and require
such things as dialysis or renal transplant at some time in the future, this will not
likely be done if he does not have some sort of medical insurance coverage.
Medical evidence of the record provided was reviewed and these findings were
considered in the overall assessment of the patient.
(Tr. 266).
The ALJ gave “little weight” to Dr. Gilbert’s opinion because he believed the assessed
limitations were inconsistent with the overall objective medical findings of record and due to the
physician’s statement that Strimel’s physical complaints “may be exaggerated.” (Tr. 23).
State agency reviewers, Nathaniel Robinson, M.D. and Joseph Curtsinger, M.D., also
provided opinions, although neither physically examined Plaintiff. While the reviewers
acknowledged that Strimel’s impairments could produce some of the symptoms reported, both
found Dr. Gilbert’s report overly restrictive based upon the evidence of record. (Tr. 61-62, 89-90).

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The reviewers believed the claimed intensity, persistence and limiting effects were not credible to
the extent described. Plaintiff’s activities of daily living served to bolster this belief. (Id.).
The reviewers next addressed Plaintiff’s exertional limitations and determined he could
occasionally lift 50 pounds, frequently lift 25 pounds and stand, walk and sit (with breaks) for
about 6 hours in an 8-hour workday. (Tr. 60, 88). With regard to postural limitations, the reviewers
noted that Plaintiff can frequently climb ramps and stairs, occasionally climb ladders, ropes and
scaffolds, frequently balance, stoop, kneel, crouch and crawl. (Tr. 61, 89).
The reviewers’ limitations reflect a residual functional capacity to perform medium work:
Medium work involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds. If someone can do medium
work, we determine that he or she can also do sedentary and light work.
20 C.F.R. §§ 404.1567 & 416.967. The ALJ gave “some weight” to the reviewers’ opinions and
found Plaintiff had the residual functional capacity to perform medium work.
The medical records existing prior to and after the alleged disability onset date are very
limited; there are no mental health records beyond the consultative report.8 The medical records
relative to Plaintiff’s back condition are primarily radiologic reports (Tr. 367) and offer no
information or history as to symptoms and pain and do not address treatment. Plaintiff appears to
have sought no treatment for his back until 2014 and, in fact, reported to Dr. Gilbert in April 2013
that he had x-rays of his back after a motorcycle accident in 2008 with “no followup” thereafter.
(Tr. 16, 264, 359). The few office treatment notes focus on Plaintiff’s urological and kidney issues
or other complaints, not his purported back condition. (Tr. 250-52, 318-37). Even those records
reveal Plaintiff’s limited pursuit of treatment. As the ALJ aptly notes, a local hospital advised
Plaintiff obtained a urology evaluation with a specialist in January 2013. (Tr. 23, 328, 336).

8

Many records in the Transcript’s medical section contain no actual medical data, such as general
discharge instructions, or the data is not particularly pertinent to disability. (Tr. 247-48, 280-83).

10

Plaintiff delayed obtaining an evaluation until mid-November 2013 after which time surgery was
performed and symptom relief achieved, at least in part. (Tr. 22, 318-22).
Plaintiff also failed to seek treatment relative to his mental health conditions despite his
complaints of depression and hyperactivity. (Tr. 22, 257). Plaintiff told the consulting examiner
for Dr. Charlton Stanley’s report that he suffered from these conditions, but was not taking any
medications for them and had not sought mental health treatment since approximately 2003. (Id.).
There is substantial evidence, particularly in the form of medical opinions, to support the
residual functional capacity established by the ALJ. The absence of objective and diagnostic
medical evidence supports this determination. The ALJ’s analysis of the claimant’s credibility
and subjective complaints, which this Court previously found appropriate, further supports the
determination. Therefore, the Court finds no error in the ALJ’s determination as to Plaintiff’s
residual functional capacity.
C.

Step Five Errors
At step five of the sequential analysis, the Commissioner carries the burden of proving the

availability of jobs in the national economy that a claimant is capable of performing. See Jordan
v. Comm’r Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008); Walters v. Comm’r of Soc. Sec., 127 F.3d
525, 529 (6th Cir.1997). An ALJ is not required to rely on vocational examiner testimony to
satisfy this burden in every case. Rather, “[a]n ALJ can use Medical-Vocational guidelines or
‘grids,’ found at 20 C.F.R. Part 404, Subpart P, Appendix 2, at the fifth step of the disability
determination after the claimant has been found not to meet the requirements of a listed
impairment, but found nevertheless incapable of performing past relevant work.” Kyle v. Comm’r
of Soc. Sec., 609 F.3d 847, 855 (6th Cir. 2010). The grids are a shortcut to avoid the need for
vocational experts. Hurt v. Sec’y of Health & Human Servs., 816 F.2d 1141, 1142 (6th Cir. 1987).
Sixth Circuit authority provides guidance regarding the appropriate use of the grids:
[T]he SSA may not rely on the grids alone to meet its step-five burden where the
evidence shows that a claimant has nonexertional impairments that preclude the
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performance of a full range of work at a given level. Normally, where a claimant
suffers from an impairment limiting only [his] strength (i.e. exertional limitations),
the SSA can satisfy its burden through reference to the grids without considering
direct evidence of the availability of jobs that the particular claimant can perform.
Jordan, 548 F.3d at 424 (citation omitted). A nonexertional impairment impacts a claimant’s
“ability to meet the demands of jobs other than the strength demands.” 20 C.F.R. § 404.1569a &
416.969a. Examples of such impairments include nervousness, anxiety, depression, difficulty
maintaining concentration, and difficulty understanding or remembering detailed instructions. Id.
The existence of a nonexertional impairment, such as one arising from a mental condition,
may periodically make the application of the grid inappropriate. “A mental impairment must
produce work-related limitations that significantly affect the claimant’s ability to perform a full
range of work at a given exertional level before a mental impairment precludes the use” of the
grids. Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990). An allegation of a nonexertional
limit is insufficient to eliminate the grids as an option; rather the key factor is “whether the alleged
impairment is severe enough to alter the conclusion that the claimant could do a full range of work
at the specified level.” Cole v. Sec’y of Health & Human Servs., 820 F.2d 768, 772 (6th Cir. 1987);
see also Collins v. Comm’r. of Soc. Sec., 357 F.App’x 663, 670 (6th Cir. 2009). However,
“[r]eliance on the grids in the presence of nonexertional limitations requires reliable evidence of
some kind that the claimant’s nonexertional limitations do not significantly limit the range of work
permitted by his exertional limitations.” Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987)
(emphasis added). 9 Lastly, where the medical-vocational guidelines are inapplicable, it is proper
for the ALJ to obtain vocational expert testimony. See Damron v. Sec. of Health & Human Servs.,

9

The Commissioner notes the requirement that a nonexertional limit must be significant or severe
enough to effect the ability to do a full range of work and cites a similar case, Moon v. Sullivan,
923 F.2d 1175 (6th Cir. 1990). However, the Commissioner omits reference to the requirement
that reliable evidence must exist to show the limitations are not so significant as to limit the range
of work. The Commissioner also relies upon SSR 96-9p. However, this ruling is not particular
informative here since its focus, as specified in the title of the ruling, is sedentary, not medium,
work.
12

778 F.2d. 279 (6th Cir. 1985); see also Tobeay v. Halter, 21 F.App’x 309, 311 (6th Cir. 2001).
The Plaintiff believes the ALJ erred by solely relying upon the grids to determine that jobs
exist in the national economy despite Plaintiff having nonexertional limitations, both mental and
postural. He urges that VE testimony was required.
Regarding nonexertional postural limitations, the reviewers opined Plaintiff can frequently
climb ramps, stairs, ropes and scaffolds and frequently balance, stoop, need, crouch and crawl, but
only occasionally climb ladders. (Tr. 61, 89). Social Security Ruling 85-15 offers guidance
regarding the impact of postural limitations on available jobs. For climbing and balancing, the
ruling indicates that “[w]here a person has some limitation in climbing and balancing and it is the
only limitation, it would not ordinarily have a significant impact on the broad world of work.”
SSR 85-15.

The most conservative climbing and balancing limitation for Plaintiff here is

occasional ladder climbing. He can frequently perform the other climbing and balancing activities.
The balancing and climbing limitations are unlikely to impact the available jobs for a person with
Plaintiff’s characteristics per the ruling, therefore use of the grids was not precluded.
As to stooping, kneeling, crouching and crawling, the ruling acknowledges these are more
strenuous positions and provides:
If a person can stoop occasionally (from very little up to one-third of the time) in
order to lift objects, the sedentary and light occupational base is virtually intact.
However, because of the lifting require for most medium, heavy, and very heavy
jobs, a person must be able to stoop frequently (from one-third to two-thirds of the
time); inability to do so would substantially affect the more strenuous portion of
the occupational base. This is also true for crouching (bending the body downward
and forward by bending both the legs and spine). However, crawling on hands and
knees and feet is a relatively rare activity even in arduous work, and limitations on
the ability to crawl would be of little significance in the broad world or work. This
is also true of kneeling (bending the legs at the knees to come to rest on one or both
knees).
SSR 85-15. Plaintiff is limited to frequent stooping. The occupational base for sedentary and light
work (which a person with a medium RFC can perform under 20 C.F.R. §§ 404.1657 & 416.967)

13

is not impacted per the ruling. The ruling also contemplates that a person who can stoop frequently
will be able to perform most medium jobs, meaning the occupational base for a person with a
medium RFC is not eroded. Finally, crawling and kneeling viewed rare work activities by the
ruling. Thus, an ability to frequently perform these posturals would have little, if any, impact on
the occupational base. The use of the grids was not precluded by these postural limitations.
With regard to mental conditions, Plaintiff underwent a consultative mental examination
as reflected in the report of Dr. Charlton Stanley and Mr. Arthur Stair. The report states, among
other diagnoses, that Plaintiff has attention deficit hyper-activity disorder, borderline intellectual
functioning, and dysthymic disorder. (Tr. 261-62). The ALJ listed Dr. Stanley’s opinions as to
Strimel’s limitations, specifically that he is mildly to moderately impaired in his ability to
understand simple information or directions with the capacity to put the information or directions
to full use. (Tr. 23). The Decision also identifies the examiner’s opinion that Plaintiff is moderately
impaired in his ability to comprehend and implement multistep complex instructions, maintain
persistence and concentration on tasks for a full workday and workweek and adapt to changes in
the workplace due. (Tr. 23, 261-62). The ALJ gave Stanley’s opinion “some” weight. (Tr. 23).
Two non-examining state agency reviewers also issued mental residual functional capacity
assessments. In May 2013, Dr. Frank Kupstas opined that Strimel has moderate limitations in his
ability to understand, remember and carry out detailed instructions, maintain attention and
concentration for extended periods, complete a normal workday and workweek without
interruptions from psychological based symptoms, perform at a consistent pace without an
unreasonable number and length of rest breaks, interact with the general public and respond
appropriately to changes in the work setting. (Tr. 62-63).
Dr. Rebecca Hansmann made a similar assessment in October 2013. (Tr. 90-92). She
agreed with Dr. Kupstas’ limitations and identified additional moderate limitations. Specifically,

14

Plaintiff has moderate limitations in his ability to perform activities within a schedule, maintain
regular attendance, be punctual within customary tolerance, work in coordination with and in
proximity to others without being distracted by them, accept instructions and respond appropriately
to criticism from supervisor and get along with coworkers or peers without distracting them or
exhibiting behavioral extremes. (Tr. 90-91). She wrote in a narrative that Plaintiff can occasionally
interact with the public, co-workers and supervisors and would work better with things than with
people. (Tr. 91). The ALJ gave the opinions of the reviewers “some” weight.
The ALJ ultimately found that Plaintiff only has the severe impairment of borderline
intellectual functioning but acknowledged this condition “results in significant limitations of
functioning and which were considered in arriving at the claimant’s reduced residual functional
capacity assessment.” (Tr. 22). The ALJ then determined that the opinion reports regarding
Plaintiff’s mental abilities supported a medium residual functional capacity (which necessarily
includes light and sedentary work) with a limitation to unskilled, entry-level positions. However,
the ALJ neither explained why he only gave “some” weight to the opinions, nor identified which,
if any, of the many restrictions or limitations listed by the experts he felt were applicable to Plaintiff
in light of the acknowledgement that Plaintiff’s mental condition causes significant limitations. In
fact, it appears the ALJ did not adopt any of the limitations given the Decision’s inexplicable
silence on this topic.
The ALJ ultimately relied solely upon the Medical-Vocational Guidelines to find that there
are “approximately 2,500 separate sedentary, light and medium unskilled jobs in the national
economy” the Plaintiff could perform. (Tr. 24).10
The ALJ erred with regard to step five. The ALJ improperly failed to identify the
nonexertional limits he adopted or accepted or, if he accepted none, why the opinions of the experts
were ostensibly rejected as to these limits in favor of the ALJ’s judgment. It seems implausible
10

A vocational expert was present at the hearing (Tr. 30), but the ALJ did ask the VE any questions.
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and inconsistent that the ALJ would accept none given the aforementioned acknowledgement of
the impact of Plaintiff’s borderline intellectual functioning. Further, wholly rejecting the expert
medical or mental health opinions requires the ALJ to rely on other evidence or authority in the
record to substitute his opinion for the examiner and reviewer opinions. See Simpson v. Comm’r
of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009).

If the ALJ adopted restrictions or

impairments, which is not evident in this case, but found they were not sufficiently significant to
preclude use of the grids, reliable evidence and an explanation would likewise be required under
Shelman. The absence of an explanation makes it impossible for the claimant or the Court to follow
the ALJ’s reasoning on a matter that has a direct effect on the outcome of this case. See SSR 0603P, 2006 WL 2329939 at *6 (stating “the adjudicator generally should explain the weight given
to opinions from . . .“other sources,” or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's
reasoning, when such opinions may have an effect on the outcome of the case.”).
The existence of four (4) to fourteen (14) moderate limitations arising from a mental
condition the ALJ found to be severe clearly raises the obvious question of whether Plaintiff’s
ability to perform a full range of work at a given exertional level would be significantly affected
by such nonexertional limitations. Reliable evidence demonstrating that nonexertional limits do
not significantly limit the range of work available the claimant was thus required in order for the
ALJ to rely solely upon the grids. Shelman, 821 F.2d at 321. Accordingly, the ALJ’s non-disability
finding must be reversed and this case remanded for further evaluation and consideration in
accordance with the Court’s Order.
IV.

CONCLUSION
Based upon the foregoing, Plaintiff’s motion for judgment on the pleadings [Doc. 18] is

GRANTED and the Commissioner’s motion for summary judgment [Doc. 20] is DENIED for the
reasons stated herein. The matter is remanded for proceedings in accordance with this Order.

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SO ORDERED:
s/ Clifton L. Corker
______
UNITED STATES MAGISTRATE JUDGE

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