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Kees v. Commissioner of Social Security

United States District Court, W.D. Kentucky, Louisville Division

March 20, 2018

TIMOTHY S. KEES, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION AND ORDER

          David J. Hale, Judge United States District Court.

         Plaintiff Timothy S. Kees filed this action seeking review of the decision by the Commissioner of Social Security to deny his application for disability-insurance benefits. (Docket No. 1) Kees alleges disability due to headaches, brain injury, PTSD, tinnitus, and various problems with his left knee, shoulders, neck, right elbow, and back. (D.N. 17-1, PageID # 2117) Kees has now moved for judgment on the pleadings, requesting that the Court vacate the agency's decision and remand the matter for payment of benefits. (D.N. 17; D.N. 17-1) The case was referred to Magistrate Judge Dave Whalin for report and recommendation. (D.N. 14) Judge Whalin issued his Findings of Fact, Conclusions of Law, and Recommendation on June 20, 2017, recommending that Kees's motion for judgment on the pleadings be denied and that the Commissioner's decision be affirmed. (D.N. 24) Kees timely filed objections to Judge Whalin's report and recommendation. (D.N. 25) After careful consideration, the Court concludes that only one of Kees's numerous objections has merit. Sustaining that objection, however, requires reversal and remand of the case to the Commissioner of Social Security.

         I.

         On November 12, 2014, Kees filed an application for disability-insurance benefits asserting that he was unable to work because of his disabling conditions. (D.N. 13-5, PageID # 269-72) The Commissioner denied the application on January 16, 2015, and again upon reconsideration on July 8, 2015. (D.N. 13-3, PageID # 139-47, 149-64) Kees thereafter requested a hearing before an administrative law judge. (D.N. 13-4, PageID # 181) Administrative Law Judge Steven Collins held a hearing on December 8, 2015. (Id., PageID # 194-217; D.N. 13-2, PageID # 91-137) On March 15, 2016, the ALJ issued an opinion finding that Kees was not disabled. (D.N. 13-2, PageID # 64-86) The ALJ determined, among other things, that Kees had the residual functional capacity (RFC)[1] to perform “light work” as defined in 20 C.F.R. § 404.1567(b). (Id., PageID # 74-83) Further, the ALJ determined that considering Kees's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that he could perform. (Id., PageID # 84-85) The appeals council denied Kees's request for review on May 27, 2016. (Id., PageID # 54-58)

         Kees filed this action on July 29, 2016, challenging the Commissioner's denial of his application for disability-insurance benefits. (D.N. 1) Kees has moved for judgment on the pleadings (D.N. 17), arguing that (1) the ALJ's RFC determination is not supported by substantial evidence and (2) the ALJ's determination regarding jobs that he could perform in the national economy is not supported by substantial evidence. (D.N. 17-1) The Court referred this matter to Magistrate Judge Dave Whalin, who issued a report and recommendation on June 20, 2017. (D.N. 14; D.N. 24) Judge Whalin recommends that this Court affirm the Commissioner's decision and deny Kees's motion for judgment on the pleadings. (D.N. 24, PageID # 2186)

         II.

         When reviewing a report and recommendation, this Court reviews de novo “those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). The Court may adopt without review any portion of the report to which an objection is not made. See Thomas v. Arn, 474 U.S. 140, 150 (1985). On review, the Court “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). Accordingly, the Court will review de novo the portions of Judge Whalin's report and recommendation to which Kees objects to determine whether relief is warranted.

         As detailed in Judge Whalin's recommendation, the Commissioner has promulgated regulations setting forth a five-step sequential process for evaluating whether a claimant is disabled. (D.N. 24, PageID # 2172 (citing 20 C.F.R. § 404.1520(a)(1))) Only steps four and five are at issue in Kees's objections. At step four, the ALJ compares the claimant's RFC with the physical and mental demands of his past relevant work. 20 C.F.R. § 404.1520(f). If the claimant can still do that kind of work, then the Commissioner will find that he is not disabled, and the analysis ends there. Id. The claimant has the burden of proof at step four. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). At step five, the ALJ considers the claimant's RFC with his age, education, and work experience to determine whether he can make an adjustment to other work. 20 C.F.R. § 404.1520(g). If the claimant cannot make such an adjustment, then the Commissioner will find that he is disabled. Id. The Commissioner has the burden of proof at step five. Walters, 127 F.3d at 529.

         In reviewing an ALJ's decision, the Court asks “whether it is supported by substantial evidence and was made pursuant to proper legal standards.” Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citations omitted). “Substantial evidence is 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.'” Id. (quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). The Court “may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Cohen v. Sec'y of Dep't of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)). Where substantial evidence supports the ALJ's decision, the Court “must affirm.” Staymate v. Comm'r of Soc. Sec., 681 F. App'x 462, 466 (6th Cir. 2017) (citing Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994)). Moreover, “[t]he findings of the [ALJ] are not subject to reversal 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); 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.”).

         III.

         A. The ALJ's Evaluation of Dr. Stodola's Assessment

         Dr. Edward Stodola performed a “mental residual functional capacity assessment” of Kees. (D.N. 13-3, PageID # 159-62) Dr. Stodola found Kees mentally able to function in that he could understand and remember simple instructions; carry out those instructions for two-hour segments over an eight-hour workday, five days per week; relate adequately in task-oriented nonpublic work settings; and adapt to changes and pressures of a routine setting. (Id., PageID # 161-62) The ALJ gave Dr. Stodola's opinion “great weight” in determining Kees's residual functional capacity. (D.N. 13-2, PageID # 83) Kees objects to Judge Whalin's finding that there was no error in the ALJ's evaluation of Dr. Stodola's assessment. (D.N. 25, PageID # 2187)

         Kees argues that the ALJ failed to acknowledge other limitations opined by Dr. Stodola, including marked limitations in his ability to maintain attention and concentration for extended periods, complete a normal workday and workweek, perform at a consistent pace, and respond appropriately to changes in work setting. (D.N. 17-1, PageID # 2127; see D.N. 13-3, PageID # 160-61) These marked limitations are found in Section I of the mental residual functional capacity assessment, however. (See D.N. 13-3, PageID # 159-61) Judge Whalin concluded that the ALJ did not err in failing to discuss or rely on the limitations in Section I of the assessment because they were not part of the final RFC finding. (D.N. 24, PageID # 2174-75) Indeed, as Judge Whalin pointed out (id., PageID # 2175), several courts have concluded that this section of the form may be assigned little or no weight, as it is not part of the final RFC finding. See, e.g., Wright v. Colvin, No. 0:14-20-EBA, 2015 WL 927445, at *2 (E.D. Ky. Mar. 4, 2015) (“Section I is merely a worksheet for the evaluator and does not constitute the evaluator's actual RFC assessment.”); Griffith v. Colvin, No. 6:13-23-DCR, 2013 WL 5536476, at *6 (E.D. Ky. Oct. 7, 2013) (“‘Section I of the form may be assigned little or no weight' because it is ‘not the final RFC finding.'” (quoting Smith v. Comm'r of Soc. Sec., 631 F.3d 632, 636-37 (3d Cir. 2010))).[2]An ALJ therefore does not err in failing to incorporate Section I findings in his RFC determination. See Griffith, 2013 WL 5536476, at *6. It follows that the ALJ here did not err in failing to acknowledge or incorporate the marked limitations in his RFC determination.

         In his objections, Kees asserts that he “has not simply argued that the ALJ committed error by failing to incorporate Dr. Stodola's Section 1 findings in his RFC determination, but rather that the ALJ purported to afford great weight to the opinion . . . while failing to fully acknowledge or discuss the marked limitations opined therein.” (D.N. 25, PageID # 2187-88) But as explained above, the ALJ was not required to acknowledge or discuss the marked limitations found in Section I of the form. See Wright, 2015 WL 927445, at *2; Griffith, 2013 WL 5536476, at *6. Moreover, it appears that the ALJ gave considerable weight to Dr. Stodola's final narrative of Kees's capacities and limitations in formulating Kees's RFC. (See D.N. 13-2, PageID # 83; D.N. 13-3, PageID # 161-62) And courts have found ALJ assessments of what a ...


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