United States District Court, W.D. Kentucky, Louisville Division
TIMOTHY S. KEES, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER
J. Hale, Judge United States District Court.
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.
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) 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)
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)
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.
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.
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
The ALJ's Evaluation of Dr. Stodola's
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
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))).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.
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 ...