Opinion
3:23-CV-02159-JRK
07-03-2024
MICHELLE HAAHR, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
JAMES R. KNEPP II, DISTRICT JUDGE
REPORT & RECOMMENDATION
JONATHAN D. GREENBERG, UNITED STATES MAGISTRATE JUDGE
Plaintiff, Michelle Haahr (“Plaintiff” or “Haahr”), challenges the final decision of Defendant, Martin O'Malley, Commissioner of Social Security (“Commissioner”), denying her applications for Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be AFFIRMED.
On December 20, 2023, Martin O'Malley became the Commissioner of Social Security.
I. PROCEDURAL HISTORY
In 2016, Haahr filed an application for POD, DIB, and SSI, alleging a disability onset date of September 3, 2013, and claiming she was disabled due to chronic obstructive pulmonary disease (“COPD”), emphysema, fibromyalgia, thoracic outlet syndrome, depression, cervical radiculopathy, thoracic neuropathy, anemia, uterine fibroids, and paresthesia. (Transcript (“Tr.”) 379, 428.) The applications were denied initially and upon reconsideration, and Haahr requested a hearing before an administrative law judge (“ALJ”).
On December 12, 2017, an ALJ held a hearing, and issued a partially favorable decision on July 5, 2018. (Id. at 189-211.) That ALJ found that from September 3, 2013, through April 30, 2015, and since May 10, 2016, Haahr had been unable to perform past relevant work. (Id. at 209.) The ALJ further noted that Haahr's disability that began on May 1, 2015 ended on May 10, 2016, and she had not been disabled since that date. (Id. at 210.) Haahr appealed the ALJ's decision, and on December 2, 2019, the Appeals Council remanded the case back to the ALJ. (Id. at 220.)
On September 15, 2020, the same ALJ held a new hearing. (Id. at 43-76.) On December 9, 2020, the ALJ issued a decision finding Haahr was not disabled. (Id. at 7-28.) The ALJ's decision became final on September 15, 2021, when the Appeals Council declined further review. (Id. at 1.)
On November 16, 2021, Haahr filed a Complaint to challenge the Commissioner's final decision. (Case No. 3:21-cv-02174-JRK; ECF No. 1) On April 13, 2022, Court granted the parties' Joint Proposed Stipulation to Remand to the Commissioner. (Id., ECF No. 10.)
On July 5, 2023, a new ALJ held a hearing, during which Haahr, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. at 3250-96.) On August 22, 2023, the ALJ issued a written decision finding Haahr was not disabled. (Id. at 3213-38.)
On November 6, 2023, Haahr filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 6-8.) Haahr asserts the sole assignment of error:
(1) The ALJ failed to account for some of the state agency experts' opinions without providing an explanation as to why they were being omitted.(Doc. No. 6.)
II. EVIDENCE
A. Personal and Vocational Evidence
Haahr was born in 1979 and was 40 years-old at the time of her most recent administrative hearing (Tr. 3236), making her a “younger” individual under Social Security regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c). She has at least a high school education. (Tr. 3236.) She has past relevant work as an assistant manager, customer service representative, and stocker. (Id.)
B. Relevant Physical Medical Evidence
The Court's recitation of the medical evidence is not intended to be exhaustive and is limited to the evidence cited in the parties' Briefs.
In September 2013, Haahr went to the emergency room complaining of chest, back, and shoulder pain, which she described as a chronic issue that began after lifting an object at work. (Id. at 542.) Prior to the visit, she had undergone extensive evaluations by a rheumatologist, family doctor, and orthopedic surgeon. (Id.) Following a rib removal in 2013 and a scalenectomy in January 2014, she returned for a follow-up in July 2014 after receiving trigger point injections in her right shoulder due to ongoing pain. (Id. at 666.) She continued to report chronic pain in her back, arms, and hands, accompanied by numbness and tingling sensations. (Id. at 2066-70.) Dr. Robert Baker, D.O., and Dr. Richard Chapman, M.D., treated her in April and May 2015 for upper back pain and arm numbness. (Id. at 663, 913.) In April 2015, Haahr reported she was still experiencing pain and numbness radiating down both arms, and she was evaluated for cervical and thoracic neuropathy. (Id. at 663.) Haahr's diagnoses included upper back pain, paresthesia, fibromyalgia, cervical radiculopathy, and thoracic outlet syndrome. (Id. at 915, 918.)
Subsequent treatment sessions with Dr. Baker documented ongoing complaints of chest pain, upper back pain, upper extremity pain, paresthesia, and weakness. (Id. at 917, 920, 923, 926, 929.) In February 2016, Haahr sought care for intermittent chest pain and COPD which was worsened by standing, laying down, walking, or breathing. (Id. at 659.) Treatment continued for her chest, back, shoulder, and arm pain through multiple sessions, which included medication management, injection therapy, and physical therapy. (Id. at 663-70, 1291-1994, 2003-2999, 3002-3840.)
In February 2016, Dr. Baker completed a physical medical source statement recommending frequent work breaks every fifteen minutes due to muscle weakness and pain, limited walking distance without pain, and restricted her to sitting or standing for 15 minutes at a time for less than two hours total. (Id. at 899900.) He opined she could rarely lift up to 5 pounds and could rarely twist, crouch, or climb stairs. (Id. at 901.) He precluded her from fine and gross manipulation or reaching overhead. (Id.) Dr. Baker further opined Haahr would be incapable of low stress work. (Id. at 902.)
Despite undergoing trigger point injections, surgeries, and physical therapy, Haahr reported limited relief from her bilateral shoulder pain. (Id. at 666, 1108-18, 1480, 2055.) In August 2016, she continued to report pain and numbness in her arms and shoulders. (Id. at 2038.) She continued to report symptoms of shortness of breath, cough, edema, weakness, nausea, and dizziness associated with her pain. (Id. at 659, 1302-1403, 2107-2971, 3082.) In March 2017, during a medication follow up at Lima Memorial Professional Corporation, Haahr reported shortness of breath, dizziness, back pain, and depression, and was told to follow up with a pulmonologist in Columbus due to worsening COPD symptoms. (Id. at 1301.) Although she was given injections and inhaler treatments to manage her COPD symptoms, she still reported episodes of shortness of breath and wheezing. (Id. at 2751-2977, 3010.)
In July 2017, Haahr sought treatment for left arm weakness, bilateral numbness and tingling, and swelling in her legs and feet. (Id. at 1399.) She reported burning her hands because of their numbness. (Id.) Following a lumbar puncture, she still experienced pain in her back, arms, and hands, accompanied by numbness and tingling, with her treating physician noting poorly controlled fibromyalgia symptoms. (Id. at 1434.) In February 2018, physician Dr. Riess determined that Haahr's fibromyalgia symptoms were still poorly controlled and noted Haahr was having considerable daytime hypersomnia despite adequate sleep. (Id. at 1675.) Haahr continued to have paresthesia due to her fibromyalgia and experienced fatigue (Id. at 1668-1994, 2003-2999, 3006-3026.) She reported difficulty in accomplishing activities as a result. (Id. at 1668-1994, 2003-2999, 3006-26.)
By July 2018, Haahr reported worsening pain and paresthesia in her legs, along with ongoing joint pain into her back and chest. (Id. at 1668.) She endorsed chronic fatigue, heart palpitations and chest pain. (Id. at 2278.) In January 2020, she was still experiencing paresthesia and felt her fibromyalgia pain had become more prominent. (Id. at 2940.) She continued injections of Xolair for her COPD symptoms but did not know if it was helping to alleviate her symptoms any further. (Id. at 2938).
C. Relevant Psychological Medical Evidence
In May 2014, Haahr reported feelings of sadness and depression, as well as trouble concentrating. (Id. at 675.) She had a decreased appetite, weight loss, and sleep disturbances. (Id.) In March 2016, Haahr underwent a psychological evaluation by Dr. Michael Wuebker. (Id. at 904-910.) Haahr reported being a quick learner and efficient at multi-tasking. (Id. at 905.) She reported dealing with depression most of her life, noting she isolated often and teared up easily. (Id. at 907.) She reported problems with sleeping and having issues with physical pain. (Id.) She reported symptoms of anxiety and nausea three or four times a week. (Id.) She expressed paranoia that she was being judged by others. (Id.) On examination, Dr. Wuebker found Haahr demonstrated adequate insight and the ability to make common sense judgments, although she complained of limited concentration. (Id. at 908.) Dr. Wuebker diagnosed Haahr with major depression and anxiety disorder. (Id. at 909.) Dr. Wuebker opined Haahr would be able to apply instructions consistent with average intellectual functioning, would have no issue getting along with co-workers, would be able to respond appropriately to work stressors, and would be able to manage funds. (Id. at 909-10.) Dr. Wuebker further opined that since Haahr had to be redirected a couple of times and had trouble focusing, she may have difficulty performing these types of skills appropriately. (Id.)
In August 2016, Haahr saw Dr. Wuebker for another psychological evaluation as part of a second application for Social Security. (Id. at 1075-1080.) Haahr reported being “extremely sad.” (Id. at 1077.) She expressed feeling hopeless and lonely, noting her mind raced and she had trouble sleeping due to pain. (Id. at 1078.) She felt anxious and became nauseous and angry several times per week. (Id.) Dr. Wuebker again opined Haahr would be able to apply instructions consistent with average intellectual functioning, would have no issue getting along with co-workers or supervisors, would be able to respond appropriately to work stressors, and would be able to manage funds. (Id. at 1080.) However, he further opined that Haahr had trouble focusing and noted Haahr voiced concern about her ability to multi-task and reported having muddled thinking. (Id.)
Beginning in October 2016, Haahr began seeing Christopher Kalb, CNP, for a mental health evaluation for medication management. (Id. at 1221.) Haahr reported feeling depressed but was otherwise eating and sleeping well. (Id.) Kalb prescribed Cymbalta. (Id. at 1222.) During a November 2016 follow up appointment, Haahr reported feeling the same. (Id. at 1222, 1228.)
In January 2017, Haahr reported less depression and pain since her medication had been increased. (Id. at 1235.) She maintained her appetite and sleeping habits were good but expressed concern at not being physically capable of doing things she used to be able to do. (Id.)
In April 2018, Haahr began regular counseling with Dr. Kurt Brickner of MercyHealth Psychology for generalized anxiety and severe depression without psychotic features. (Id. at 2487-2490.) Haahr described herself as a previous “workaholic” and she was not working as much now. (Id.) She explained she could not do things she used to enjoy as much due to her medical issues, and this had caused her relationship with her mother to change. (Id.) She reported feeling sluggish and devoid of energy because of her sleep medication. (Id.) Throughout May, June, August, and September 2018, Haahr reported feelings of guilt and paranoia associated with people believing she was not friendly or that she was being judged. (Id. at 2511, 2541, 2560.) Haahr would clean several hours per day and acknowledged her tendency to be a perfectionist. (Id. at 2502, 2511, 2519, 2526.)
During a January 2019 therapy session, Haahr expressed fear of going out in public, as her face would flush and made her self-conscious. (Id. at 2533.) She maintained family stressors were ongoing, especially with her mother. (Id.) She had very high expectations of herself and found it difficult to relax. (Id. at 2541.) She reported improvement by going out with friends and enjoying herself. (Id. at 2550.) While improvements were made in managing her anxiety, her provider opined more was needed. (Id.) Haahr began to talk to her family more and organize her mother's things, noting she was working through family stress. (Id. at 2560.) She reported increased productivity but was unsure about her role in life, maintaining she was still experiencing a lot of physical pain. (Id. at 2568, 2575.) She avoided social situations due to her anxiety. (Id. at 2575.) She continued to express hesitation with leaving her house, but acknowledged she had difficulty doing much due to her physical pain. (Id. at 2592.) In February 2022, she still reported general feelings of depression. (Id. at 3635.)
D. State Agency Reports
1. Mental Impairments
At the initial level, state agency reviewing physician Cynthia Waggoner, Psy.D., determined Haahr suffered from “severe” anxiety-related disorders. (Tr. 124.) Her ability to understand and remember detailed was “moderately limited,” and Dr. Waggoner opined she could complete 4- to 5-step tasks. (Id. at 129.) She was moderately limited in her ability to carry out detailed instruction and maintain attention and concentration for extended periods. (Id.) Dr. Waggoner further opined that Haahr was moderately limited in her ability to work in coordination with or in proximity to others without being distracted by them. (Id.) Dr. Waggoner opined Haahr could carry out tasks that offered flexibility from strict production demands. (Id. at 130.)
Dr. Waggoner determined Haahr had a moderately limited ability to interact appropriately with the general public, accept instructions and respond appropriately to criticism from supervisors, and get along with coworkers or peers without distracting them or demonstrating behavioral extremes. (Id.) She was capable of intermittent and superficial social interaction. (Id.) Dr. Waggoner further opined that Haahr was moderately limited in her ability to respond appropriately to changes in the work setting and would be capable of a static work environment where there are no fast-paced production demands, and she could receive assistance and guidance as needed to complete tasks. (Id.)
On reconsideration, Dr. Karla Delcour, Ph.D., affirmed Dr. Waggoner's findings. (Id. at 161-67.)
2. Physical Impairments
At the initial level, state agency reviewing physician Gerald Klyop, M.D., opined Haahr was capable of lifting and/or carrying 20 pounds on an occasional basis and 10 pounds on a frequent basis. (Id. at 126.) She was limited to standing and/or walking for a total of four hours and sitting for a total of six hours in a typical eight-hour workday. (Id.) Further, Haahr was limited in her ability to push and/or pull from both upper extremities. (Id. at 127.) Dr. Klyop based his opinion in part on Haahr's decreased range of motion in her neck and bilateral shoulder abduction. (Id.) She was prohibited from climbing ladders, ropes, or scaffolds. (Id.) She was limited to occasionally climbing ramps and stairs, stooping, kneeling, crouching, and crawling because of decreased range of motion in her neck and bilateral shoulder abduction, as well as difficulty breathing. (Id.) Dr. Klyop opined Haahr's neck and shoulder restrictions limited her reaching ability in the front, lateral, and overhead directions as well. (Id.) He further opined Haahr must avoid concentrated exposure to extreme cold, heat, wetness and humidity, as well as fumes, odors, dusts, gases, poor ventilation, and exposure to all hazards. (Id. at 128.) These restrictions stemmed from her difficulties with breathing, decreased range of motion in her neck and bilateral shoulder abduction, and cervical muscle spasms.
On reconsideration, Diane Manos, M.D., affirmed Dr. Klyop's findings. (Id. at 161-67.)
D. Hearing Testimony
During the July 5, 2023 hearing, Haahr testified to the following:
• She lives in a one floor house with her boyfriend. (Id. at 3255.) She gets out of the house about twice a week. (Id. at 3258.) She will ask the cashier at a store to help lift heavy things if needed. (Id. at 3275.) She stands in the shower to bathe but has a stool in case she becomes fatigued. (Id. at 3271.) She modifies her clothing to avoid touching a certain pain by her clavicle. (Id. at 3272.) She can pay attention to books but sometimes has to repeat a page because she cannot focus. (Id. 3280.) She cannot write a letter without taking a break. (Id. at 3282.)
• She cannot lift over ten pounds with pain. (Id. at 3265.) She said the pain is from her shoulders to her hands, which will go numb and cause her to drop things. (Id.) She cannot walk and talk or talk for long periods without becoming short of breath. (Id. at 3266.) She said she exerts more energy trying to do something, such as eating or chewing. (Id. at 3268.) She recently had a partial finger amputation due to an infection she believed began from a burn on the stove. (Id. at 3262.) She can sit and stand for intermittent periods of time. (Id. at 3270.) She avoids reaching because it makes her hands go numb. (Id. at 3282) She experiences pain and numbness in her back and shoulders and hands, especially with reaching. (Id.) She regularly does breathing treatments and exercises if they will help. (Id. at 3279, 3281.)
The VE testified Haahr had past work as an assistant manager and customer service associate. (Tr. 3284-85.) The ALJ then posed the following hypothetical question:
1. “Assume an individual with the claimant's age, education, and experience; lift and carry 20 pounds occasionally, 10 pounds frequently; sit for six hours and stand and walk four. Claimant can never climb ladders, ropes, or scaffolds; occasionally climbs ramps and stairs; occasionally balance, crouch, kneel, stoop, and crawl; occasionally reach with the bilateral upper extremities; and frequently - oh, I'm sorry - occasionally push and pull; and frequently handle, feel, and finger; occasionally be exposed to extreme heat, cold, and humidity and wetness...”
[at this time the VE asked the ALJ to repeat part of what he said; the ALJ then continued as follows]
“...occasional exposure to dust, fumes, odors, gasses, and other pulmonary irritants; never work around unprotected heights or unprotected moving, mechanical machinery, occasionally operate a motor vehicle; can understand, remember, and carry out simple instructions; and can perform simple, routine tasks, but not at a production-rate pace such as an assembly line or conveyor belt; make judgments on simple work and respond appropriately to usual work settings and changes in a work setting with few unexpected changes; can interact occasionally with supervisors and occasionally and superficially with coworkers and never with the general public. Superficial is defined as able to be in proximity of others, exchange greetings, and exchange in discussions that don't require persuasion or involved tandem tasks. Would the individual be able to perform the past work?”(Id. at 3285-3286.)
The VE testified the hypothetical individual would not be able to perform any of Haahr's past work as defined by the Dictionary of Occupational Titles or as performed, nor were there any representative jobs in the economy such an individual could perform. (Id. at 3286-87.) The ALJ then asked if there were occupations an individual could perform if that individual could frequently reach all directions. (Id.) The VE further testified this hypothetical individual would be able to perform representative jobs in the economy, such as inspector, hand packager, assembler of plastic hospital products, and assembler of electrical accessories. (Id. at 3288.)
The ALJ then asked about the same limitations, except for jobs at the sedentary level. (Id.) The VE testified jobs such as final assembler, lens inserter, eyeglass frame polisher, and lamp-shade assembler, would exist in the economy that fit that hypothetical individual. (Id. at 3288-89.)
The ALJ then posed the same hypothetical, except the hypothetical individual is consistently absent, defined to include coming in late and leaving early two days a month due to symptoms. (Id.) The VE testified the hypothetical person would not be able to maintain nor retain employment in any of the previously mentioned jobs, nor would the hypothetical person be able to perform those jobs if the reaching was reduced to occasional at the sedentary level. (Id.) The VE noted “ordinary breaks” are generally defined as a 15- minute break in the morning and afternoon, and a half-hour break for lunch. (Id. at 3290). One day absence a month? would not affect job retention, nor would less than 15 percent time off task. (Id.)
Haahr's attorney then posed several hypothetical questions to the VE. (Id. at 3290-95.) He asked if a hypothetical individual would need employer accommodation for unscheduled additional breaks. (Id. at 3291.) The VE emphasized the significance of productivity, noting if the worker is not able to maintain employment, they cannot maintain the job. (Id.) The attorney also asked what the normal employer tolerance would be if a supervisor or employer approached the hypothetical individual for constructive criticism, performance evaluation, or task direction, but it happened to fall during a time when the worker was either unwilling or unable to interact (either by simply turning and walking away, or becoming angry, yelling, and possibly throwing things) (Id. at 3291-92.) The VE testified it was not a matter of tolerance; rather, it was dependent on circumstances. (Id. at 3292.) If such behavior was ongoing, then it would be a problem and the worker likely would not be able to maintain employment. (Id. at 3292.) The attorney asked whether, if the interaction was limited to a superficial basis, such as basic greetings, the hypothetical individual would likely be unable to get through a normal job interview or training and evaluations, to which the VE agreed. (Id. at 3293.) The VE further testified that none of the representative jobs previously identified involved the hypothetical individual having to coordinate or lead others, being responsible for others or the public, or working in a group. (Id. 3294-95.)
III. STANDARD FOR DISABILITY
In order to establish entitlement to DIB under the Act, a claimant must be insured at the time of disability and must prove an inability to engage “in substantial gainful activity by reason of any medically determinable physical or mental impairment,” or combination of impairments, that can be expected to “result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. §§ 404.130, 404.315, 404.1505(a).
A claimant is entitled to a POD only if the claimant: (1) had a disability; (2) was insured when the claimant became disabled; and (3) filed while the claimant was disabled or within twelve months of the date the disability ended. 42 U.S.C. § 416(i)(2)(E); 20 C.F.R. § 404.320.
A disabled claimant may also be entitled to receive SSI benefits. 20 C.F.R. § 416.905; Kirk v. Sec y of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). To receive SSI benefits, a claimant must meet certain income and resource limitations. 20 C.F.R. §§ 416.1100, 416.1201.
The Commissioner reaches a determination as to whether a claimant is disabled by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) , 416.920(a)(4). See also Ealy v. Comm 'r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate that they are not currently engaged in “substantial gainful activity” at the time of the disability application. 20 C.F.R. §§ 404.1520(b), 416.920(b). Second, the claimant must show that they suffer from a “severe impairment” in order to warrant a finding of disability. 20 C.F.R. §§ 404.1520(c), 416.920(c). A “severe impairment” is one that “significantly limits . . . physical or mental ability to do basic work activities.” Abbot, 905 F.2d at 923. Third, if the claimant is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the impairment, or combination of impairments, meets or medically equals a required listing under 20 CFR Part 404, Subpart P, Appendix 1, the claimant is presumed to be disabled regardless of age, education, or work experience. See 20 C.F.R. §§ 404.1520(d), 416.920(d). Fourth, if the claimant's impairment or combination of impairments does not prevent the claimant from doing their past relevant work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). For the fifth and final step, even if the claimant's impairment does prevent the claimant from doing their past relevant work, if other work exists in the national economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§ 404.1520(g), 404.1560(c), 416.920(g).
Here, Haahr was insured on the alleged disability onset date, September 3, 2013, and remained insured through June 30, 2019, the date last insured (“DLI”). (Tr. 3219.) Therefore, in order to be entitled to POD and DIB, Haahr must establish a continuous twelve-month period of disability commencing between these dates. Any discontinuity in the twelve-month period precludes an entitlement to benefits. See Mullis v. Bowen, 861 F.2d 991, 994 (6th Cir. 1988); Henry v. Gardner, 381 F.2d 191, 195 (6th Cir. 1967).
IV. SUMMARY OF COMMISSIONER'S DECISION
The ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2019.
2. The claimant has not engaged in substantial gainful activity since September 3, 2013, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: bilateral thoracic outlet syndrome, status-post scalenectomies, rib resection, and brachial neurolysis; cervical spine degenerative disc disease with kyphoscoliosis/lordosis straightening; reflex sympathetic dystrophy syndrome (RSD); chronic obstructive pulmonary disease/obstructive airways disease; fibromyalgia; weight loss; Reynaud's phenomenon; distal paresthesia; migraine; right ring finger tenosynovitis with partial amputation; and psychological conditions variously described as: major depression, dysthymic disorder, cyclothymic disorder, mixed obsessional thoughts and acts; obsessive-compulsive disorder, and anxiety (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, 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 the claimant can never climb ladders, ropes, or scaffolds and can occasionally climb ramps and stairs, balance, crouch, kneel, stoop, and crawl. She can frequently reach with the bilateral upper extremities, and she can occasionally push and/or pull and frequently handle, feel, and finger. She can have occasional exposure to extreme cold, heat, humidity, and wetness along with dust, fumes, odors, gases, and other pulmonary irritants. She cannot work around unprotected heights or unprotected moving mechanical machinery. She can
occasionally operate a motor vehicle. The claimant can understand, remember, and carry out simple instructions, and perform simple routine tasks, but not a production rate pace such as required working on an assembly line or conveyor belt. She can make judgments on simple work and respond appropriately to usual work situations and changes in a routine work setting with few and expected changes, can interact occasionally with supervisors and occasionally and superficially with coworkers and never with the public, superficial defined as, able to be in proximity of others, able to exchange greetings, and able to engage in discussions that do not require persuasion or involve tandem tasks.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born in July 1979 and was 34 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 at least a high school education (20 CFR 404.1564 and 416.964).
9. Transferability of j ob skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
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, 404.1569a, 416.969, and 416.969a).
11. The claimant has not been under a disability, as defined in the Social Security Act, from September 3, 2013, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).(Tr. 3219-38.)
V. STANDARD OF REVIEW
The Social Security Act authorizes narrow judicial review of the final decision of the Social Security Administration (SSA).” Reynolds v. Comm'r of Soc. Sec., 424 Fed.Appx. 411, 414 (6th Cir. 2011). Specifically, this Court's review is limited to determining whether the Commissioner's decision is supported by substantial evidence and was made pursuant to proper legal standards. See Ealy v. Comm 'r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010); White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009). Substantial evidence has been defined as “‘more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Rogers v. Comm 'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec 'y of Health and Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). In determining whether an ALJ's findings are supported by substantial evidence, the Court does not review the evidence de novo, make credibility determinations, or weigh the evidence. Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).
Review of the Commissioner's decision must be based on the record as a whole. Heston v. Comm 'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The findings of the Commissioner are not subject to reversal, however, merely because there exists in the record substantial evidence to support a different conclusion. Buxton v. Halter, 246 F.3d 762, 772-73 (6th Cir. 2001) (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)); see also Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999) (“Even if the evidence could also support another conclusion, the decision of the Administrative Law Judge must stand if the evidence could reasonably support the conclusion reached.”). This is so because there is a “zone of choice” within which the Commissioner can act, without the fear of court interference. Mullen, 800 F.2d at 545 (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
In addition to considering whether the Commissioner's decision was supported by substantial evidence, the Court must determine whether proper legal standards were applied. Failure of the Commissioner to apply the correct legal standards as promulgated by the regulations is grounds for reversal. See, e.g., White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“Even if supported by substantial evidence, however, 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.”).
Finally, a district court cannot uphold an ALJ's decision, even 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) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996)); accord Shrader v. Astrue, No. 11-1300, 2012 WL 5383120, at *6 (E.D. Mich. Nov. 1, 2012) (“If relevant evidence is not mentioned, the Court cannot determine if it was discounted or merely overlooked.”); McHugh v. Astrue, No. 1:10-cv-734, 2011 WL 6130824 (S.D. Ohio Nov. 15, 2011); Gilliam v. Astrue, No. 2:10-CV-017, 2010 WL 2837260 (E.D. Tenn. July 19, 2010); Hook v. Astrue, No. 1:09-cv-1982, 2010 WL 2929562 (N.D. Ohio July 9, 2010).
VI. ANALYSIS
In her sole assignment of error, Haahr maintains the ALJ failed to account for the state agency psychologists' opinions and failed to provide an adequate explanation for why they were, in part, omitted from the RFC. (Doc. No. 6.) The state agency experts at both the initial and reconsideration levels deemed her moderately limited in her ability to act appropriately with the general public and accept instructions and respond appropriately to criticism from supervisors. (Tr. 130, 147,166, 183.) She was moderately limited in her ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. (Id.) While not significantly limited in her ability to maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness, Haahr was capable of intermittent and superficial social interaction, which was affirmed on reconsideration. (Id.)
The ALJ considered these opinions and determined Haahr could “make judgments on simple work and respond appropriately to usual work situations and change in a routine work setting with few and expected changes, can interact occasionally with supervisors and occasionally and superficially with coworkers, and never the public, superficial defined as, able to be in proximity of others, able to exchange greetings, and able to engage in discussion that do not require persuasion or involve tandem tasks.” (Id. at 3223.) Haahr asserts the ALJ gave the state agency opinions some weight but did not adopt every limitation they identified. (Doc. No. 6 at 14.) She maintains the state agency experts limited her to superficial social interactions with everybody, including supervisors, coworkers, and the general public. (Id. at 15.) The ALJ, she claims, made a distinction between her ability to interact with supervisors, coworkers, and the general public. (Id.) Haahr states she has no issue with the ALJ's limitation on her interactions with coworkers or the general public, because the ALJ included a consistent, if not more restrictive, limitation in his RFC. (Id.) However, Haahr challenges the ALJ's limitation on her interaction with supervisors. She argues that while the state agency experts limited her to “superficial” interactions with supervisors, the ALJ limited her to “occasional” interactions with supervisors. (Doc. No. 6 at 16.) She asserts the ALJ's failure to clarify why he chose not to adopt the opinions on supervisor interaction is harmful error. (Id.)
In response, the Commissioner asserts the ALJ identified substantial evidence for not adopting the limitation, and even if the ALJ erred, it was harmless error. (Doc. No. 7 at 1.) The Commissioner maintains the ALJ had no obligation to adopt the state agency reports verbatim. (Id. at 5.) Comparing this matter to a recent case, Weiman v. Comm'r of Soc. Sec., 3:22-cv-01045-JRK, 2023 WL 4078327, at *5 (N.D. Ohio May 2, 2023), report and recommendation adopted by 2023 WL 554197 (N.D. Ohio Aug. 29, 2023), the Commissioner argues the court addressed whether it was error to adopt all the limitations by the two state agency psychological consultants whose opinion were assigned “some” weight. (Id. at *7.) While their opinions indicated the claimant was limited to superficial interaction with others, the ALJ did not include a limitation to interacting superficially with supervisors in his report. (Id.) The court found the ALJ properly explained the RFC limitations regarding the superficial interaction restriction given the ALJ's earlier reference to the claimant's limited ability to interact with others, prior medical evidence, and the record as a whole. (Id. at *8.)
In reply, Haahr argues that the ALJ had a duty to explain how he reached a decision regarding supervisor interactions that differed from the opinions of the state agency physicians. (Doc. No. 8 at 2.) She acknowledges the ALJ did not have to provide “good reason” for according less than controlling weight to their opinions, but he did need to justify his decision. (Id. at 3.)
In formulating the RFC, ALJs “are not bound by any findings made by State agency medical or psychological consultants, or other program physicians or psychologists.” 20 C.F.R. § 404.1527(e)(2)(i) . Nonetheless, because “state agency medical and psychological consultants and other program physicians, psychologists, and other medical specialists are highly qualified physicians, psychologists,” ALJs must consider their findings and opinions. Id. When doing so, an ALJ “will evaluate the findings using the relevant factors in paragraphs (a) through (d) of this section, such as the consultant's medical specialty and expertise in our rules, the supporting evidence in the case record, supporting explanations the medical or psychological consultant provides, and any other factors relevant to the weighing of the opinions.” 20 C.F.R. § 404.1527(e)(2)(ii). Finally, an ALJ “must explain the decision the weight given to the opinions of a state agency medical or psychological consultant or other program physician, psychologist, or other medical specialist” unless a treating physician's opinion has been accorded controlling weight. Id.
Revised versions of these regulations took effect on March 27, 2017 and apply to disability claims filed on or after that date. See 82 Fed.Reg. 5844 (March 27, 2017). [Need to add in that they don't apply to Haahr's claims because her filing predates this.
These factors include the relationship and frequency of examination, the nature and extent of the treatment relationship, how well-supported the opinion is by medical signs and laboratory findings, its consistency with the record as a whole, the treating source's specialization, the source's familiarity with the Social Security program and understanding of its evidentiary requirements, and the extent to which the source is familiar with other information in the case record relevant to the decision. 20 CFR §416.1527(c)(1)-(6).
As noted supra, both state agency reviewing physicians opined Haahr was moderately limited in her ability to respond appropriately to criticism from supervisors. (Tr. 147.) She was further found capable of intermittent and superficial social interaction. (Id.) The ALJ limited Haahr to occasional interaction with supervisors. (Id. at 3223.) The ALJ discussed the opinions of the state agency physicians as follows:
The State agency psychological consultants reviewed the claim at the initial and reconsideration level, and they opined that the claimant was capable of
four to five step tasks, which did not require extended periods of concentration to complete, and that offer flexibility from strict production demands. (Ex. 1A pgs. 13, 14; Ex. 6A pgs. 13, 14). Additionally, they opined that she was capable of intermittent and superficial social interaction, in a static work environment where there were no fast-paced production demands, and the claimant could receive assistance and guidance as needed to complete tasks. (Ex. 1A pg. 14; Ex. 6A pg. 14). I have considered these opinions and gives them some weight. The opinion that the claimant could receive assistance and guidance “as needed” is not supported by the evidence in the file as this term is vague, and not defined vocationally. Moreover, treatment records from Christopher Kalb, CNP, generally noted that the claimant had a linear thought process and fair concentration. (Ex. 19F pgs. 6, 7; Ex. 24F pgs. 5, 6; Ex. 35F pgs. 6, 7, 42, 43, 49, 50, 66, 67). In April 2018, Dr. Brickner saw the claimant and found that she had intact concentration, and a linear thought process. (Ex. 47F pgs.5, 6). This suggests that the claimant would not require assistance and guidance on a regular basis. However, given the claimant's attention and concentration was only described as “fair,” I find that this supports greater limitations on her ability to complete tasks. I have accounted for this by limiting the claimant to simple instructions, and simple, routine tasks.(Id. at 3235.)
The ALJ explained why he was only affording the state agency opinions “some weight,” but those reasons center on the term “as needed” regarding Haahr's guidance in task completion. (Id.) The other reason for affording their opinions “some weight” was due to inconsistencies with treatment records from Christopher Kalb, CNP, and Dr. Brickner, and the state agency opinions on Haahr's need for guidance or assistance regarding Haahr's concentration and linear thought process. (Id. at 3235) Neither explanation addressed why the ALJ did not adopt the state agency's finding of Haahr's “intermittent and superficial social interaction” and rather limited her to “occasional” interaction with supervisors.
In Wieman, the claimant argued the ALJ omitted the suggestion of “superficial” interaction with supervisors, coworkers, and the general public that was proffered by the state agency physicians, and rather limited the claimant to “occasional” interaction without explanation. Weiman, 2023 WL 4078327, at *7. The claimant argued there was a distinction between “occasional” and “superficial” interaction. (Id.) The court acknowledged that while the ALJ was not required to adopt verbatim wording of an opinion, an explanation was required if the RFC contradicted state agency findings. (Id. at *8.) The court agreed that “occasional” is a Social Security term referring to quantity of interaction rather than the quality. (Id.) In particular, the ALJ limited the claimant to “occasional interaction with supervisors and coworkers, but [he] should have no team or tandem work with co-workers.” (Id.) The court found the ALJ's restriction prohibiting the claimant from “team or tandem tasks with coworkers” accounted for the qualitative nature of a social interaction. (Id.) The court noted a limitation to “no tandem tasks” is a qualitative limitation on social interaction, which addressed the administrative findings that the claimant be limited to superficial interaction with others. (Id.) (See also Romo v. Comm'r of Soc. Sec., No. 3:20-CV-01447-JGC, 2021 WL 5040385, at *7 (N.D. Ohio July 9, 2021) (“Here, since the ALJ limited Claimant to ‘no tandem work', such a limitation prevents him from working alongside coworkers and supervisors. It logically follows then that the only interaction that Claimant would have with his coworkers and supervisors would be superficial.”). This is distinguishable from Haahr's case because Haahr's limitations do not involve “team or tandem tasks”; rather, they involve “occasional” versus “superficial” contact with Haahr's supervisors.
A. “Occasional” versus “Superficial”
The Sixth Circuit has analyzed whether an ALJ gave proper weight to a psychologists' evaluation that the claimant was able to relate on a “superficial basis” when the ALJ limited the claimant to “occasional interaction.” (Reeves v. Commissioner of Social Security, 618 Fed.Appx. 267, 275 (6th Cir. 2015.)) The Sixth Circuit determined the “occasional” limitation in the RFC was “not inconsistent” with the psychologists' “superficial” limitation, and that “[e]ven when an ALJ provides ‘great weight' to an opinion, there is no recommendation that an ALJ adopt a state agency psychologist's opinions verbatim; nor is the ALJ required to adopt the state agency psychologist's limitations wholesale.” Id. (citations omitted).
Although the Sixth Circuit has not addressed the meaning of these terms since it's opinion in Reeves, courts remain divided on the meaning of “occasional” and “superficial” interactions. Courts in this District have pointed out “there is no definition for the term ‘superficial interaction' in the Dictionary of Occupational Titles.” Johnson v. Comm'r of Soc. Sec., No. 1:22-cv-02272, 2023 WL 8283922, at *15 (N.D. Ohio Nov. 9, 2023) (citations omitted), report and recommendation adopted, 2022 WL 8281461 (N.D. Ohio Nov. 30, 2023); Burley v. Commr. of Social Sec., No. 4:23-CV-00218, 2024 WL 1297554, *6, (N.D. Ohio March 27, 2024.) (“The Court declines to adopt our sister District's approach distinguishing superficial and occasional interaction.”); James v. Commr. of Social Sec., No. 1:22-CV-1915, 2023 WL 417932 at *20 (N.D. Ohio June 5, 2023.) Courts in the Southern District appear to have adopted a vocational term of “superficial” interactions, “which definition is presumed to be qualitatively inconsistent with “occasional” interactions. ” Stephen D. v. Commr. of Social Sec., No. 1:21-CV-00746, 2023 WL 4991918, *7 (S.D. Ohio August 4, 2023), report and recommendation adopted, S.D.Ohio No. 1:21-CV-7462024 WL 2204735. See, e.g., WilliamH. v. Comm'r of Soc. Sec., No. 3:21-cv-219-CHG, 2022 WL 4591304, at *4-6 (S.D. Ohio Sept. 30, 2022) (ALJ made reversible error by dismissing “superficial” as lacking vocational definition, despite district precedent defining the term relative to social interactions); Crisp v. Comm'r of Soc. Sec., No. 2:19-cv-2401-MHW-CMV, 2020 WL 581841, at *3-4 (S.D. Ohio Feb. 6, 2020) (reversing based on ALJ's “inadequate” rejection of “superficial interactions” as “somewhat ambiguous”), R&R adopted, 2020 WL 5640056 (S.D. Ohio Sept. 22, 2020).
This Court does not follow the Southern District of Ohio's approach that distinguishes between superficial and occasional interaction, opting instead to adhere to the precedent established by Reeves within the Sixth Circuit. The fact the ALJ utilized the phrase “occasional” rather than “superficial” interaction with Haahr's supervisors does not draw a distinction void of explanation, and is harmless error. There is no requirement for the ALJ adopt the state agency opinions word for word. See Reeves, 618 Fed.Appx. at 275. “The more relevant inquiry is whether the facts in this case demonstrate that the RFC assessment is not supported by substantial evidence.” Johnson, 2023 WL 8283922, at *1 (citing Daniels v. Comm'r of Soc. Sec., No. 3:19-CV-02946, 2020 WL 6913490, at *10 (N.D. Ohio Nov. 24, 2020). “Simply put, there is no legal requirement for an ALJ to explain each limitation or restriction he adopts or, conversely, does not adopt from a non-examining physician's opinion, even when it is given significant weight.”), Smith v. Comm'r of Soc. Sec., 2013 WL 1150133, at *11 (N.D. Ohio Mar. 19, 2013) af (6th Cir. 13-2578 Jan. 30, 2014) (“While Smith contends otherwise, there is no requirement that an ALJ adopt the entirety of a state expert opinion, even if affording it significant weight, or that the ALJ provide an explanation for why certain limitations proposed by the expert were not incorporated into his residual functional capacity assessment.”). Johnson v. Commr. of Social Sec., No. 1:22-CV-02272-BYP, 2023 WL 8283922, *16, (N.D. Ohio November 9, 2023) report and recommendation adopted, N.D.Ohio No. 1:22-CV-22722023 WL 8281461.
Haahr does not demonstrate how the ALJ's limitation of “occasional” interaction with supervisors was not supported by substantial evidence or distinguishable from “superficial” interaction. See Daniels v. Comm'r of Soc. Sec., No. 3:19-CV-02946, 2020 WL 6913490, at *10 (N.D. Ohio Nov. 24, 2020). In considering the record, the ALJ noted that Haahr had a “mild” limitation in her ability to interact with others. (Tr. 3222.) The ALJ noted consideration of Haahr's ability to interact with others, including treatment records from Christopher Kalb, CNP and Dr. Chapman indicating she presented a “normal” and “euthymic” mood, as well as a cooperative attitude. (Id.) In absence of any indication from Haahr suggesting otherwise, this Court finds it reasonable for the ALJ to have interpreted and apply the term “occasional” as she did. In sum, this Court finds the ALJ supported her decision with substantial evidence.
VII. CONCLUSION
For the foregoing reasons, the Magistrate Judge recommends that the Commissioner's final decision be AFFIRMED.
OBJECTIONS
Any objections to this Report and Recommendation must be filed with the Clerk of Courts within fourteen (14) days after being served with a copy of this document. Failure to file objections within the specified time may forfeit the right to appeal the District Court's order. Berkshire v. Beauvais, 928 F.3d 520, 530-31 (6th Cir. 2019).