Johnson v. Social Security Administration
REPORT AND RECOMMENDATION re 15 Amended MOTION for Judgment on the Record filed by Tammy Lynn Johnson. Upon review of the administrative record and consideration of the parties' filings, I find no error that would necessitate remand in this case and therefore recommend that Plaintiff's motion for judgment on the administrative record ( 15 ) be DENIED. Signed by Magistrate Judge J. Gregory Wehrman on 4/13/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
TAMMY LYNN JOHNSON
COMMISSIONER, SOCIAL SECURITY
The Honorable Aleta A. Trauger, District Judge
REPORT AND RECOMMENDATION
Pending before the Court is Plaintiff’s amended motion for judgment on the
administrative record. See Docket Entry (“DE”) 15. 2 Plaintiff brought this action pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of the final decision of the Social
Security Administration (“Commissioner”). At issue is whether the administrative law judge
(“ALJ”) erred in finding that Plaintiff was “not disabled,” and therefore not entitled to Disability
Insurance Benefits (“DIB”) or Supplement Security Income (“SSI”). (See Administrative
Transcript (“Tr.”) at 20-38). 3 This matter has been referred to the undersigned, pursuant to 28
U.S.C. § 636(b), for initial consideration and a report and recommendation. See DE 4.
Nancy A. Berryhill was the Acting Commissioner of Social Security beginning January 23,
2017. However, her acting status ended as a matter of law pursuant to the Federal Vacancies Reform Act,
5 U.S.C. § 3345 et seq. Pursuant to Fed. R. Civ. P. 17(d), a public officer who is sued in an official
capacity may be designated by official title rather than by name. Since Ms. Berryhill is no longer the
Acting Commissioner, the Clerk is DIRECTED to identify Defendant by the official title rather than by
Plaintiff filed the amended motion following a deficiency in her initial motion’s certificate of
service. See DE 14. The original motion (DE 14) is therefore DENIED as moot.
The Transcript of the Administrative Record is hereinafter referenced by the abbreviation “Tr.”
followed by the corresponding page number(s) as denoted by the large black print on the bottom right
corner of each page.
Upon review of the administrative record and consideration of the parties’ filings, I find
no error that would necessitate remand in this case and therefore recommend that Plaintiff’s
motion for judgment on the administrative record (DE 15) be DENIED.
FACTS AND PROCEDURAL HISTORY
Plaintiff protectively filed an application for DIB and SSI on August 19, 2013 due to a
fractured talus bone, necrosis and a collapsed bone, depression, anxiety, Hepatitis C, polycystic
ovarian syndrome, and neuropathy, with an alleged disability onset date of April 1, 2013. (Tr.
94-95, 140). Her application was denied initially and upon reconsideration. (Tr. 94-95, 132-33).
Pursuant to her request for a hearing before an ALJ, Plaintiff appeared with counsel and testified
at a hearing before ALJ David A. Ettinger on September 10, 2015. (Tr. 44). On February 23,
2016, the ALJ denied the claim. (Tr. 20-22). On February 15, 2017, the Appeals Council denied
Plaintiff’s request for a review of the ALJ’s decision; therefore, the ALJ’s decision stands as the
final determination of the Commissioner. (Tr. 1-3).
As part of the decision, the ALJ made the following enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2017.
2. The claimant has not engaged in substantial gainful activity since April 1, 2013,
the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: right ankle avascular
necrosis, peripheral vascular disease, peripheral neuropathy, obesity, depressive
disorder, and borderline intellectual functioning (20 CFR 404.1520(c) and
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, I find that the claimant has the
residual functional capacity to perform sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) except that she cannot stand or walk for more than
one hour during a work day; cannot more than occasionally operate foot controls
with her right leg; cannot climb ladders; cannot more than occasionally climb
stairs or crawl; cannot more than frequently balance, stoop, kneel, or crouch; must
avoid concentrated exposure to extreme cold, respiratory irritants, and hazardous
work environments; is limited to simple repetitive work; cannot maintain attention
or concentration for longer than two hours without interruption; cannot interact
with the public; and cannot more than occasionally interact with supervisors and
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and
7. The claimant was born on December 18, 1974 and was 38 years old, which is
defined as a younger individual age 18-44, on the alleged disability onset date (20
CFR 404.1563 and 416.963).
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 in this case because the claimant’s past
relevant work is unskilled (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,
11. The claimant has not been under a disability, as defined in the Social Security
Act, from April 1, 2013, through the date of this decision (20 CFR 404.1520(g)
On appeal, Plaintiff submits two assertions of error: (1) that the ALJ failed to properly
consider the opinion of a treating source; and (2) that the residual functional capacity (“RFC”)
determination is not supported by substantial evidence. DE 15-1 at 11. Plaintiff therefore
requests that this case be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g)
for further consideration. Id. at 19.
A. Standard of Review
On appeal, the Court is charged with determining whether the ALJ’s decision is
supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is defined as “more
than a mere scintilla” and “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d
842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed.
126 (1938)). If substantial evidence supports the ALJ’s decision, that decision must be affirmed
“even if there is substantial evidence in the record that would have supported an opposite
conclusion.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v.
Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). As explained by the Sixth Circuit:
The Commissioner’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion. The
substantial evidence standard presupposes that there is a “zone of choice” within
which the Commissioner may proceed without interference from the courts. If the
Commissioner’s decision is supported by substantial evidence, a reviewing court
Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The Commissioner employs a five-step sequential evaluation process in considering
whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). If the issue of disability
can be resolved at any point in the evaluation process, the ALJ does not proceed to the next step
and the claim is not reviewed further. Id. §§ 404.1520(a)(4), 416.920(a)(4). At step one, the
claimant must show that she is not engaged in “substantial gainful activity” at the time disability
benefits are sought; at step two, the ALJ considers whether one or more of the claimant’s alleged
impairments are “severe” in nature; at step three, the ALJ determines whether the impairments at
issue meet or equal one of the Listings contained in the regulatory List of Impairments; at step
four, the ALJ considers the claimant’s residual functional capacity (“RFC”) and determines
whether the claimant can still perform past relevant work; and at step five, the burden of proof
shifts to the ALJ to assess whether the claimant, after establishing that past relevant work is no
longer possible, is capable of performing other types of work. Id. §§ 404.1520(a)(4)(i)-(v),
If the ALJ determines at step four that the claimant can perform past relevant work, the
claimant is deemed “not disabled” and the ALJ need not complete the remaining steps of the
sequential analysis. Id. §§ 404.1520(a), 416.920(a). “Past relevant work” is defined as work that
claimants have done within the past fifteen years that is “substantial gainful activity” and that
lasted long enough for the claimant to learn to do it. Combs v. Comm’r of Soc. Sec., 459 F.3d
640, 643 (6th Cir. 2006) (citing 20 C.F.R. § 404.1560(b)(1)). If the claimant is incapable of
performing past relevant work, however, the ALJ proceeds to step five to determine whether, in
light of the claimant’s RFC, age, education, and work experience, the claimant can perform other
substantial gainful employment and whether such employment exists in significant numbers in
the national economy. In determining a claimant’s RFC, the ALJ is required to consider the
combined effect of all of the claimant’s impairments, mental and physical, severe and nonsevere.
See 42 U.S.C. §§ 423(d)(2)(B), (5)(B).
The Court’s review of the Commissioner’s decision is limited to the record made during
the administrative hearing process. Willbanks v. Sec’y of Health & Human Servs., 847 F.2d 301,
303 (6th Cir. 1988). A reviewing court may not try the case de novo, resolve conflicts in
evidence, or decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984) (Myers v. Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the
ALJ’s explicit findings and determination unless the record as a whole is without substantial
evidence to support the ALJ’s determination. Houston v. Sec’y of Health & Human Servs., 736
F.2d 365, 366 (6th Cir. 1984) (citing 42 U.S.C. § 405(g)).
B. The Commissioner’s Decision
The ALJ resolved the current Plaintiff’s claim at step five of the five-step process.
Although Plaintiff was found to have met the first two steps, the ALJ determined at step three
that Plaintiff did not have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1, and was therefore not presumptively disabled. At step four, the ALJ found that Plaintiff was
unable to perform any past relevant work. At step five, the ALJ found that Plaintiff’s RFC
allowed her to perform sedentary with express limitations to account for her severe impairments,
and that there were jobs that existed in significant numbers in the national economy that Plaintiff
could perform despite such limitations. (Tr. 25-38).
C. Assertions of Error
1. The opinion of the treating physician.
Plaintiff first asserts that the ALJ erred by violating a provision in the regulations known
commonly as the “treating physician rule.” 4 Under this provision, the ALJ must accord
controlling weight to the opinion of a treating physician if the opinion is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
Even if the opinion is not given controlling the weight, the ALJ must consider the amount of
weight to accord it. Karger v. Comm’r of Soc. Sec., 414 F. App’x 739, 751 (6th Cir. 2011)
The treating physician rule applies to all Social Security claims filed before March 27, 2017,
such as the instant one, but the rule is no longer in effect.
(quoting Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 550 (6th Cir. 2010)). The ALJ’s
explanation for such weight allocation “must be sufficiently specific to make clear to any
subsequent reviewers the weight the [ALJ] gave to the treating source’s medical opinion and
reasons for that weight.” Johnson-Hunt v. Comm’r of Soc. Sec., 500 F. App’x 411, 418 (6th Cir.
2012) (quoting Helm v. Comm’r of Soc. Sec. Admin., 405 F. App’x 997, 1000 (6th Cir. 2011)).
Dr. Steven Larson, an orthopedist who treated Plaintiff’s ankle condition on five separate
occasions, completed an RFC questionnaire on October 10, 2013 in which he diagnosed with
Plaintiff with a “fracture tarsal, nonunion avascular necrosis, and posttraumatic arthritis.” (Tr.
340). 5 Dr. Larson opined that these conditions prevented Plaintiff from being able to sit for more
than one hour at a time or stand and walk for more than five minutes at a time, but also found
that Plaintiff was able to sit for the entirety of an eight-hour workday and stand and walk for one
hour per workday. (Tr. 340). Dr. Larson included several severe functional limitations in the
questionnaire: Plaintiff’s condition would “often” interfere with her attention and concentration;
she would need to recline or lie down multiple times during an eight-hour workday; she would
require a 15-minute break every hour of the workday; she would require a job that permits her to
alternate at will between sitting, standing, and walking; she would likely be absent from work
more than four times per month; and she cannot lift or carry any amount of weight. (Tr. 340-41).
In granting this opinion “partial” weight, the ALJ accepted Dr. Larson’s conclusions
regarding the amount of time Plaintiff could sit, stand, and walk during a workday, but granted
little weight to the remainder of the questionnaire. (Tr. 31). The ALJ provided the following
explanation for rejecting the additional restrictions: “Dr. Larson failed to support such
Plaintiff acknowledges in her brief that all of her medical records instead identify her condition
as a fractured talus, though she asks the Court to assume that Dr. Larson “mistakenly wrote tarsal.” DE
15-1 at 9, n.1 (emphasis added).
restrictions with reference to any abnormal medical findings or otherwise meaningfully explain
the connection between such extreme limitations and the claimant’s impairments.” (Tr. 31).
Plaintiff argues that this explanation is insufficient to fulfill the requirements of the treating
physician rule because it focuses solely on the supportability of Dr. Larson’s opinion and
disregards the other applicable factors contained in 20 C.F.R. § 404.1527(c). DE 15-1 at 16-17.
As an initial matter, the Sixth Circuit has held that even a single reason rejection of a
treating source opinion can be sufficient if it “reaches several of the factors that an ALJ must
consider when determining what weight to give a non-controlling opinion by a treating source[.]”
Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 651 (6th Cir. 2009). The ALJ’s explanation in the
instant case directly addresses at least the supportability and consistency of Dr. Larson’s opinion,
both of which are obligatory considerations when determining the amount of weight to give to a
treating physician’s conclusions. See 20 C.F.R. § 404.1527(c)(3)-(4). The emphasis on Dr.
Larson’s failure to explain the correlation between Plaintiff’s ankle impairment and other severe
restrictions in the questionnaire, including her purported inability to lift any amount of weight
(see Tr. 341), also arguably goes to the ALJ’s consideration of any “other factors ... which tend
to support or contradict the medical opinion.” 20 C.F.R. § 404.1527(c)(6).
Plaintiff nonetheless points to multiple imaging studies that demonstrate the presence of a
talus fracture and avascular necrosis in her right foot, including an x-ray taken on June 25, 2013
that revealed a “nonunion [fracture] site” that showed “no sign of healing.” (Tr. 352, 373-74,
490). Such evidence does not, however, refute the ALJ’s finding that Dr. Larson failed to
establish a causal relationship between Plaintiff’s condition and all of the limitations contained in
the questionnaire. See Carroll v. Comm’r of Soc. Sec., No. 2:09-cv-14037, 2011 WL 4576007, at
*9 (E.D. Mich. Aug. 5, 2011), report and recommendation adopted, 2011 WL 4532286 (E.D.
Mich. Sept. 30, 2011) (noting that 20 C.F.R. § 404.1527(c)(3) requires the ALJ to consider “the
evidence presented by a treating physician to support his opinion”). Nor does the existence of a
talus fracture and avascular necrosis in Plaintiff’s foot explain why she would be unable to lift
any amount of weight (Tr. 341), a finding that is particularly questionable in light of Plaintiff’s
own testimony that she could “comfortably” lift and carry 10 pounds. (Tr. 55). Such evidence is
critical to the Court’s analysis since “disability is determined by the functional limitations
imposed by a condition, not the mere diagnosis of it.” Hill v. Comm’r of Soc. Sec., 560 F. App’x
547, 551 (6th Cir. 2014) (citing Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)).
The questionnaire instead merely identifies Plaintiff’s symptoms as “pain, swelling,
unable to walk,” the latter of which is contradicted by Dr. Larson’s own finding that Plaintiff can
“stand/walk” for one hour per eight-hour workday, as well as Plaintiff’s statements that she
cooks, cleans, does laundry, takes out the trash, and plays games with her grandchildren. (Tr. 53,
340, 417). Plaintiff nonetheless claims that Dr. Larson’s identification of “swelling” as a
symptom is a sufficient basis to support his opinion that she would require a position that
allowed her to shift between standing, sitting, and walking at will. DE 15-1 at 15. Plaintiff’s brief
references an online article that describes the impact of swelling on an individual’s foot, leg, and
ankle, as well as recommended ways of treating this condition. Id. But Plaintiff’s post hoc
attempt to bootstrap the conclusions contained in the questionnaire cannot rescue it from Dr.
Larson’s failure to explain the basis for his opinions, a shortcoming that weighs against this
assertion of error. See 20 C.F.R. § 404.1527(c)(3) (“The better an explanation a source provides
for a medical opinion, the more weight we will give that medical opinion.”) (emphasis added).
The record also suggests that any swelling experienced by Plaintiff has been intermittent, as she
reported no swelling at all in approximately half of her visits with Dr. Larson, including during
their penultimate encounter. (See Tr. 350, 357, 376, 383). Dr. Larson’s perfunctory reference to
“swelling” does little to support the restrictions recommended in the questionnaire. See Jackson
v. Comm’r of Soc. Sec., No. 1:16-cv-236, 2016 WL 7009784, at *5 (W.D. Mich. Dec. 1, 2016)
(affirming ALJ’s decision to accord little weight to a treating physician’s “checkbox worksheet”
opinion that failed to “provide a logical bridge between objective treatment records and the
Furthermore, and crucially, the ALJ discussed the inconsistency of Plaintiff’s allegation
that she was forced to quit her job in April of 2013 because of the severity of her foot condition
in light of her subsequent application for and receipt of unemployment benefits. (Tr. 36, 50, 63,
222). The Sixth Circuit has noted that applications for both unemployment and disability benefits
are “inherently inconsistent” as there “is no reasonable explanation for how a person can claim
disability benefits under the guise of being unable to work, and yet file an application for
unemployment benefits claiming that [she] is ready and willing to work.” Workman v. Comm’r
of Soc. Sec., 105 F. App’x 794, 801-02 (6th Cir. 2004) (internal citations and quotations
omitted). The record in the instant matter indicates that Plaintiff applied for jobs after her alleged
onset date and continued receiving unemployment benefits at least through December of 2013
(Tr. 62-63, 412), approximately two months after the questionnaire was completed, which both
rebuts Dr. Larson’s opinion that Plaintiff would not be “capable of working an 8 hour day, 5
days a week employment on a sustained basis” (Tr. 341), and suggests the absence of a disabling
condition. See Villarreal v. Comm’r of Soc. Sec., No. 2:13-cv-15197, 2014 WL 6750327, at *7
(E.D. Mich. Nov. 30, 2014) (noting that the claimant’s applications for jobs and unemployment
benefits after the alleged onset date were “obviously not consistent with his allegations of
Plaintiff’s claim that the ALJ erred by referencing only one factor, supportability (DE 151 at 14), understates the extent of the ALJ’s analysis. In discussing the severity of the alleged
impairments, the ALJ explained that Plaintiff was able to largely ambulate without significant
difficulty, noting that Plaintiff’s use of assistive walking aids was minimal. (Tr. 26). The ALJ
also discussed Plaintiff’s “mild restriction” with respect to her activities of daily living, which
included performance of household chores, driving, grocery shopping, and caring for her
grandchildren. (Tr. 27). Moreover, as noted supra, the ALJ discussed the relatively mild physical
findings derived from examinations of Plaintiff. (Tr. 30). Such discussion adequately challenges
the validity of the restrictions contained in Dr. Larson’s questionnaire “in an indirect but clear
way,” which the Sixth Circuit has found to represent substantial evidence. Brock v. Comm’r of
Soc. Sec., 368 F. App’x 622, 625 (6th Cir. 2010). Furthermore, the ALJ did not reject Dr.
Larson’s opinion outright, instead granting the opinion “partial weight” and adopting and
incorporating into the RFC the limitations in the questionnaire relating to Plaintiff’s ability to sit,
stand, and walk, which was within his purview. Cf. Warner v. Comm’r of Social Sec., 375 F.3d
387, 391-392 (6th Cir. 2004) (holding that it was “significant that the [ALJ] did not reject
wholesale the conclusions” of the treating physician, and emphasizing that the ALJ may reject all
or a portion of a treating source’s findings).
As long as the ALJ’s determination is supported by substantial evidence, reversal is not
warranted even if substantial evidence might support an opposite conclusion. Bass v. McMahon,
499 F.3d 506, 509 (6th Cir. 2007) (citing Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005)). The ALJ in this case highlighted Dr. Larson’s failure to provide any explanation
or identify any medical findings to support the severity of the limitations contained in the
questionnaire, which was entirely appropriate. Significantly, the ALJ also discussed the
relatively mild findings related to Plaintiff’s ankle condition that were documented during
multiple encounters, including the “well preserved” ankle joint space exhibited in x-rays, as well
as the normal findings derived from physical examinations, which documented normal joint
stability, range of motion, and motor strength. (Tr. 30, 31, 424, 447). The ALJ thus, at a
minimum, “implicitly provided sufficient reasons” for giving only partial weight to Dr. Larson’s
questionnaire. Nelson v. Comm’r of Soc. Sec., 195 F. App’x 462, 472 (6th Cir. 2006) (noting that
the ALJ “adequately addressed [the treating physicians’] opinions by indirectly attacking both
the consistency of those opinions with the other record evidence and their supportability”). The
ALJ also reasonably accommodated Plaintiff’s foot impairment by limiting her to sedentary
work with additional functional limitations. (Tr. 29). The undersigned therefore finds no error in
the ALJ’s analysis.
2. The RFC.
Plaintiff next contends that the ALJ “failed to reconcile” the mental restrictions
recommended by Dr. Lorraine Greene, who performed a psychological evaluation of Plaintiff in
November of 2015, with the restrictions that were ultimately incorporated into the RFC. DE 15-1
at 17. As part of her evaluation, Dr. Greene opined that Plaintiff had mild impairment in her
ability to appropriately interact with the public and with coworkers, and moderate impairment in
her ability to respond appropriately to usual work situations and to changes in a routine work
setting. (Tr. 519). The ALJ accorded Dr. Greene’s opinion “great weight” in light of its general
consistency with her examination findings, the findings from Plaintiff’s previous consultative
examination, and Plaintiff’s standardized test scores. (Tr. 34). Plaintiff alleges, however, that the
ALJ erred by failing to incorporate all of Dr. Greene’s restrictions into the RFC despite
according the opinion great weight.
After the ALJ determined that Plaintiff had severe impairments preventing her from
being able to perform any past work, the burden shifted to the Commissioner to establish that
there were a significant number of jobs that Plaintiff could still perform in light of her RFC.
Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). In order to meet
this burden, there must be “a finding supported by substantial evidence that [plaintiff] has the
vocational qualifications to perform specific jobs.” Id. (quoting O’Banner v. Sec’y of Health,
Education & Welfare, 587 F.2d 321, 323 (6th Cir. 1978)). The Commissioner may procure
substantial evidence to support such a finding by relying on testimony from a vocational expert
in response to a hypothetical question that “accurately portrays [the claimant’s] individual
physical and mental impairments.” Id. (internal citations omitted).
During the administrative hearing, the ALJ asked a vocational expert whether there were
jobs that could be performed by a hypothetical claimant with an RFC that included a limitation
of simple, repetitive work, an inability to maintain attention or concentration for more than two
hours without interruption, and an inability to interact with supervisors or coworkers more than
occasionally. (Tr. 65). The vocational expert testified that such a hypothetical claimant would be
able to perform jobs as an assembler, a film touch-up inspector, and a cuff folder. (Tr. 66-67).
The ALJ subsequently adopted these limitations as part of the assigned RFC. (Tr. 29). Absent
from the hypothetical, however, was Dr. Greene’s identified limitation pertaining to Plaintiff’s
“moderate” difficulty in responding appropriately to usual work situations and changes in a
routine work setting, which, according to Plaintiff, represents an error necessitating remand.
Despite this contention, the Court finds no basis on which to reverse the ALJ’s decision.
For one, there is no indication that the “moderate” limitations identified by Plaintiff would
prevent her from performing the positions identified by the vocational expert. The Sixth Circuit
has held that such a circumstance renders harmless an ALJ’s failure to incorporate all of the
limitations from an opinion that was accorded great weight into a hypothetical. See Sims v.
Comm’r of Soc. Sec., 406 F. App’x 977, 982 (6th Cir. 2011) (ALJ’s failure to include moderate
limitations in the claimant’s ability to respond appropriately to changes in the work setting was
harmless error based on lack of evidence suggesting that such a limitation would have impacted
the ability of the claimant to perform the duties of multiple sedentary jobs identified by the
vocational expert). Plaintiff asserts broadly that “it is impossible ...to know” whether these two
moderate limitations would affect her ability to perform sedentary work (DE 15-1 at 19), yet
such vagueness is insufficient to establish the existence of a reversible error. See Kepke v.
Comm’r of Soc. Sec., 636 F. App’x 625, 635-36 (6th Cir. 2016) (“Because [the claimant] has not
shown that more precise wording in the hypothetical would have resulted in a finding of
disability, the ALJ’s error was immaterial and harmless.”).
Plaintiff also cites Sixth Circuit precedent to argue that the ALJ failed to elicit testimony
in response to hypothetical that accurately reflected her condition. See Ealy v. Comm’r of Soc.
Sec., 594 F.3d 504 (6th Cir. 2010). In Ealy, the ALJ accorded “great weight” to the opinion of a
non-examining State agency physician who concluded that the subject claimant could “sustain
attention to complete simple repetitive tasks for two-hour segments over an eight-hour day where
speed was not critical[.]” Id. at 509. The Sixth Circuit concluded that the ALJ committed
reversible error by failing to include this additional restriction in the hypothetical that was posed
to the vocational expert, which merely limited claimant to “simple, repetitive tasks and
instructions in non-public work settings.” Id. at 510, 516. In contrast, Dr. Greene’s opinion
included no such specific limitation, as her RFC assessment instead contains only a checked box
on a form indicating that Plaintiff is “moderately” deficient in her ability to respond
appropriately to work situations and changes in routine. (Tr. 519).
Additionally, the Sixth Circuit has explicitly held that a moderate limitation in a
claimant’s ability to respond to changes at work, as opposed to the moderate limitation with
respect to concentration, persistence, and pace involved in Ealy, was adequately reflected by a
hypothetical that limited the claimant to routine and repetitive work. See Smith-Johnson v.
Comm’r of Soc. Sec., 579 F. App’x 426, 437 (6th Cir. 2014) (noting that an opinion accorded
“great weight” by the ALJ did not contain “concrete limitations as to the particular type of
changes with which [the claimant] has difficulty”). The hypothetical question at issue in this case
similarly included a limitation to “simple repetitive work” (Tr. 29), a restriction that the Sixth
Circuit found to represent a sufficient portrayal of a claimant who is moderately impaired in her
ability to respond to work changes. Id. (noting that a “functional limitation to routine and
repetitive tasks, and to limited interaction with the general public, provides structure and
monotony so as to reduce work changes to which [the claimant] would have to respond”). The
undersigned therefore finds that the ALJ posed a hypothetical that correctly depicted Plaintiff’s
mental impairments, as was his charge. See Brock, 368 F. App’x at 626 (“While the hypothetical
question could have contained more restrictions, it contained an accurate portrayal of [the
claimant’s] mental limitations.”)
Although a hypothetical question must accurately describe the functional limitations
caused by a claimant’s condition, there is no requirement that the hypothetical “match the
language of the RFC verbatim.” Kepke, 636 F. App’x at 635 (6th Cir. 2016). Plaintiff faults the
ALJ for failing to include a single segment of Dr. Greene’s RFC, yet points to no evidence
suggesting that inclusion of this relatively mild functional limitation in the hypothetical would
have changed the outcome of her case. See Sims, 406 F. App’x 977, at 980 (noting that a
“moderate” limitation in social functioning is a “non-disabling” condition). The undersigned
therefore concludes that the ALJ presented a hypothetical to the vocational expert that
adequately captured Plaintiff’s impairments with respect to her ability to respond appropriately
to usual work situations and changes in the work setting. The absence of this moderate limitation
in the hypothetical therefore fails to rise to the level of reversible error, thus requiring rejection
of Plaintiff’s assertion of error.
For the above stated reasons, it is recommended that Plaintiff’s motion for judgment on
the administrative record (DE 15) be DENIED and the Commissioner’s decision be AFFIRMED.
OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court
within fourteen (14) days of the date of service of this Report and Recommendation or further
appeal is waived. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); United
States v. Walters, 638 F.2d 947 (6th Cir. 1981). Poorly drafted objections, general objections, or
objections that require a judge’s interpretation should be afforded no effect and are insufficient to
preserve the right of appeal. See Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509
(6th Cir. 1991). A party may file a response to another party’s objections within fourteen (14)
days after being served with a copy thereof. Fed. R. Civ. P. Rule 72(b).
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