Mobley v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

WILLIE MOBLEY ) CASE NO. 1:19-CV-02777

)

Plaintiff, )

)

v. ) MAGISTRATE JUDGE

) JONATHAN D. GREENBERG

ANDREW SAUL, )

Commissioner of Social Security, )

) MEMORANDUM OF OPINION

Defendant. ) AND ORDER

)

Plaintiff, Willie Mobley (“Plaintiff” or “Mobley”), challenges the final decision of

Defendant, Andrew Saul,1 Commissioner of Social Security (“Commissioner”), denying his

application for Supplemental Security Income (“SSI”) under Title 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) and the consent of the parties, pursuant to 28 U.S.C. § 636(c)(2). For the reasons set forth

below, the Commissioner’s final decision is VACATED AND REMANDED FOR FURTHER

CONSIDERATION CONSISTENT WITH THIS OPINION.

1 On June 17, 2019, Andrew Saul became the Commissioner of Social Security.

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I. PROCEDURAL HISTORY

On August 17, 2015, Mobley filed an application for SSI, alleging a disability onset date of

October 1, 2009 and claiming he was disabled due to neuropathy, lower back, right hand problems,

and right knee. (Transcript (“Tr.”) at 236-44.) The applications were denied initially and upon

reconsideration, and Mobley requested a hearing before an administrative law judge (“ALJ”). (Id.

at 182-84, 190-94, 195-97.)

On August 21, 2017, an ALJ held a hearing, during which Mobley, represented by counsel,

and an impartial vocational expert (“VE”) testified. (Id. at 119-46.) At his hearing, Mobley

amended his alleged onset date to August 17, 2015.2 (Id. at 121-22.) On January 17, 2018, the ALJ

issued a written decision finding Plaintiff was not disabled. (Id. at 102-18.) The ALJ’ s decision

became final on October 23, 2019, when the Appeals Council declined further review. (Id. at 1-7.)

On November 26, 2019, Mobley filed his Complaint to challenge the Commissioner’s final

decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 14-1,15.)

Mobley asserts the following assignments of error:

(1) The ALJ erred by finding Plaintiff retained the residual functional capacity

to perform light work activity without proper consideration of his symptoms.

(2) The ALJ erred in evaluating the opinion evidence from Plaintiff’s treating

mental health sources.

(Doc. No. 14-1 at 1.)

2 Regardless of the actual or alleged onset date of disability, an SSI claimant is not

entitled to SSI benefits prior to the date the claimant files an SSI application. See 20

C.F.R. § 416.335.

2

II. EVIDENCE

A. Personal and Vocational Evidence

Mobley was born in 1969 and was 48 years old, which is defined as a “younger individual

age 18-49” under social security regulations, on the date the application was filed. (Tr. 113.) See

20 C.F.R. §§ 404.1563 & 416.963. He has a limited education and is able to communicate in

English. (Id.) He has no past relevant work. (Id.)

B. Relevant Medical Evidence3

1. Mental Impairments

On July 1, 2015, Mobley, accompanied by his wife, discussed his frustration with limitations

due to his diabetes mellitus and its complications and admitted to depression and an interest in

counseling with his nurse practitioner, Bernadette Bogdas. (Id. at 378.)

Mobley, accompanied by his wife, underwent a Mental Health Assessment on July 20, 2015

by Benjamin Rubin, L.I.S.W., at MetroHealth’s Broadway Behavioral Medicine clinic upon referral

from Nurse Bogdas for depression related to diabetes mellitus. (Id. at 484-92.) He reported a

history of auditory and visual hallucinations since childhood, sleep problems, low energy level, daily

depression, crying spells, worry, restlessness, and intrusive thoughts and nightmares related to

witnessing his father attempting to kill his mother with an axe. (Id. at 486.) Recent stressors

included numerous family deaths. (Id.) He reported pain in his fingers, legs, and feet at 10, on a

scale of 1-10. (Id. at 487.) Rubin observed him to be well groomed and cooperative, with clear

speech, logical thought processes, appropriate language, good recent and remote recall, sustained

3 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.

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attention span and concentration, and fair insight and judgment. (Id. at 489.) Rubin’s diagnostic

impressions were Mood disorder unspecified, R/O Psychotic d/o and Anxiety d/o unspecified

(PTSD-provisional) R/O OCD. (Id.) He recommended “psychopharm” and therapy services. (Id.)

On October 19, 2015, Mobley and his wife attended a therapy session with Rubin. (Id. at

531-32.) He reported he was experiencing significant new stressors related to a shooting incident

and bullet going through his house. (Id.) He did not report pain. (Id. at 532.) Rubin observed him

to be well groomed, cooperative, with a normal rate and flow of speech, logical and organized

thought process, good judgment and insight, normal memory, sustained attention, appropriate

language and full range of affect. (Id. at 532-33.) Mobley reported ongoing trouble with sleep and

exhibited a dysphoric mood. (Id.)

On October 23, 2015, Mobley was evaluated by psychiatrist Vikram Vaka, M.D., at the

Behavioral Medicine Clinic. (Id. at 524-31.) Mobley reported daily depressed mood; anhedonia,

feelings of guilt, hopelessness, and worthlessness; low energy; poor concentration; decreased

appetite; and poor sleep. (Id. at 524.) Dr. Vaka observed him to be well groomed and thin;

cooperative; with a spontaneous, normal rate and flow of speech; logical and organized thought

process; good judgment and insight; normal memory; sustained attention and concentration; and no

evidence of paranoia, delusions or perceptual distrubance. (Id. at 527.) Dr. Vaka also observed he

was withdrawn, with depressed mood and constricted affect. (Id.) There was no change in

diagnoses and Dr. Vaka prescribed quetiapine for mood, anxiety and sleep, and educated Mobley

about sleep hygiene. (Id. at 527-28.)

On November 9, 2015, Allison Flowers, Psy.D., performed a consultative psychological

evaluation at the request of the state agency. (Id. at 616-24.) Mobley reported difficulties falling

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and staying asleep, problems related to nightmares, weight loss, depressed mood, crying spells,

irritability caused by his pain, and anxiety about his health. (Id. at 619.) He had stopped taking his

prescribed psychiatric medication after one day, due to side effects. (Id. at 618.) He reported he

was able to take care of his personal needs, but sometimes needed assistance if his feet hurt or were

numb. (Id. at 619.) He cooks and prepares food two or three times a week. (Id.) He does not

perform household chores. (Id.) He occasionally goes grocery shopping, using a motorized cart,

and sometimes drives, but typically is driven by his wife or children. (Id.) He became tearful when

discussing his anxiety symptoms; had some impairment in attention and concentration and showed

some mild impairment in attention and concentration, which Dr. Flowers attributed either to pain

or distractions created by his 3-year-old son, who was present during the appointment; and was

functioning below average intellectually, with a “somewhat limited” general fund of information.

(Id. at 620.) Dr. Flowers diagnosed Mobley with adjustment disorder with mixed anxiety and

depressed mood, with a guarded prognosis, and noted that diabetes and associated pain could be

affecting his mental health and cognitive functioning.4 (Id. at 621.) She opined Mobley would have

some difficulties in carrying out complex instructions but did not find any limitations in his ability

to maintain attention and concentration, perform simple or multi-step tasks, interact, and respond

appropriately to work pressures in a work setting. (Id. at 622-23.)

On November 24, 2015, Mobley told Dr. Vaka he felt too sedated on quetiapine, and was

losing weight due to his lack of appetite. (Id. at 590-93.) He continued to have poor sleep, poor

appetite, nightmares and depressed mood. (Id. at 592.) On mental examination, Dr. Vaka found

4 Dr. Flowers believed that Mobley was not receiving mental health treatment, although

she cited records from his mental heathcare at MetroHealth. She opined that his

prognosis “may be improved with mental health treatment. (Tr. 621.)

5

poor hygiene, depressed mood, constricted affect and fair judgement and insight. (Id.) All other

mental states exam findings were normal. (Id.) Mobley did not report pain. (Id.) He stopped

quetiapine due to over-sedation and prescribed mirtazapine for depression, anxiety and sleep. (Id.

at 593.)

On February 22, 2016, Mobley told Rubin he felt “so so.” (Id. at 678.) He felt his

depression was “maybe a bit worse,” his anxiety was about the same, his energy was low and he had

short term memory problems. (Id.) He was also in pain. (Id. at 679.) Rubin found Mobley’s mood

varied from euthymic to dysphoric, and his mental status examination results were otherwise normal.

(Id.)

On March 8, 2016, Rubin and Dr. Vaka completed a joint medical source statement

regarding Mobley’s mental capacity. (Id. at 626-627.) They opined Mobley could perform the

following tasks occasionally5 based upon diagnoses of Major Depressive Disorder, recurrent, and

PTSD:

• maintain attention and concentration for extend periods of two hour segments;

• deal with the public;

• relate to co-workers;

• function independently without redirection;

• work in coordination with or proximity to others without being distracted;

• deal with work stress;

• understand, remember and carry out detailed and complex instructions;

5 The form defined “occasionally” as “ability for activity exists for up to 1/3 of a work

day.” (Tr. 626.)

6

• socialize;

• behave in an emotionally stable manner; and

• leave home on his own.

(Id. at 626-27.) Additionally, they opined that Mobley’s capacity to complete a normal workday and

workweek without interruption from psychologically-based symptoms and perform at a consistent

pace without an unreasonable number and length of rest periods was “rare,” meaning it “cannot be

performed for any appreciable time.” (Id. at 626.) They explained the basis for this opinion as

follows: “Eyes are not so good, major depressive disorder recurrent, PTSD, neuropathy diabetic

nerve damage for life, hands-feet-legs-back-arms.”

On March 29, 2016, Mobley underwent a second consultative evaluation with psychologist

Herschel Pickholtz, Ph.D. (Id. at 689-97). Dr. Pickholtz believed that Rubin was Mobley’s

prescribing psychiatrist, and that he was not receiving therapy. (Id. at 691.) Mobley reported having

mild depressive episodes about twice per month lasting up to 15 hours at a time, and experiencing

mild levels of anxiety. (Id.) Mental status examination revealed “a little bit” of constriction and

slowed motor activity, some difficulty in terms of understanding and responding to questions and

directives presented to him, some rambling verbalizations with refocus needed, and a “slightly

depressed and a little bit anxious” tone of voice and mood. (Id. at 693.) Mobley reported that, prior

to beginning his current psychiatric medications, his depression and anxiety were much worse. (Id.

at 694.) Mobley reported of some ideas of reference6 and mild auditory and visual hallucinations.

(Id. at 693.) Dr. Pickholtz noted that Mobley’s overall capacities for attention, concentration,

6 “Ideas of reference” refers to “the sense that events or the actions of others (e.g.,

talking, whispering, smiling) relate particularly to oneself.” Dictionary, Am.

Psychological Assoc., https://dictionary.apa.org/idea-of-reference (last visited 7/15/20).

7

memory and intellectual levels of functioning based upon the clinical interview and cognitive

portion of the evaluation fell within the borderline range. (Id. at 696.) Dr. Pickholtz diagnosed

unspecified mood disorder with mild psychotic feature in partial remission, mild to moderate, and

unspecified anxiety disorder with few PTSD symptoms, currently, mild. (Id. at 696-97). He also

recommended that Mobley be medically evaluated to determine whether he had suffered brain

damage when he was hit three months prior to the evaluation.7 (Id.) He opined that Mobley would

have slight impairment in his capacity to understand, remember and carry out instructions for work

comparable to what he did in the past, slight impairment in ability to perform one to three-step tasks

for low-skilled and unskilled labor, some impairment in his ability to relate to coworkers and others

based upon his presentation and description of social interaction, and some impairment in his

capacities to handle stresses and pressures of work. (Id.)

On June 23, 2016, Mobley reported to Rubin that his mood was “up and down,” and he was

experiencing severe knee pain (Id. at 723.) His mental status exam was within the normal range,

and Rubin noted that Mobley seemed to be coping “mildly better.” (Id. at 723-24.)

Rubin completed another medical source statement regarding Mobley’s mental functioning

on July 31, 2017, but noted that he had not seen Mobley for treatment since June 2016. (Id. at

750-51). He indicated Mobley had mild limitations in most areas of functioning but had moderate

limitations in asking for help when needed, and marked limitations in sustaining an ordinary routine

and regular attendance at work and managing his psychologically based symptoms. (Id. at 750-51.)

2. Physical Impairments

7 Dr. Pickholtz qualified all his findings as accurate “unless there is corroboration of a

significant deterioration relative to neurocognitive functioning secondary to him being hit

in the head some three months ago.” (Tr. 697.)

8

On July 17, 2013, prior to his alleged onset date, Mobley sought treatment for pain in his

legs. (Id. at 400-01.) Primary care physician Amy Zack, M.D., diagnosed neuropathy related to his

uncontrolled diabetes, and prescribed a trial of gabapentin. (Id. at 402.)

On September 23, 2013, Mobley reported burning in his legs at night which woke him, and

Dr. Zack increased his dosage of gabapentin. (Id. at 398-400.)

On December 1, 2013, Mobley was seen by a nurse practitioner for treatment of foot pain

and medication refills. (Id. at 397-98.) He reported he had bilateral foot pain about three times a

week, and had trouble sleeping. (Id.)

On March 26, 2014, Dr. Zack noted Mobley had poor sensation during examination of his

feet and increased his dosage of Lyrica. (Id. at 395-96.)

On July 9, 2014, Mobley reported burning in his feet and lower back and Dr. Zack found

decreased sensation in his feet and diagnosed neuropathy in his legs and back. (Id. at 393-95.)

On October 31, 2014, primary care physician Rebecca Schroeder, M.D. noted that Mobley’s

numbness and tingling in his feet were somewhat responsive to Lyrica. (Id. at 385-86.)

On January 30, 2015, Mobley reported numbness and tingling in his hands and feet and

requested a higher dosage of Lyrica. (Id. at 383-85.)

On June 17, 2015, Mobley’s dosage of Lyrica was again increased after he reported

worsening peripheral neuropathy, occurring daily, with numbness, tingling and cold

sensation in his feet and fingertips. (Id. at 380-82.)

On July 27, 2015, Mobley had an initial evaluation with Shu Que Huang, M.D., of

MetroHealth’s Department of Physical Medicine and Rehabilitation, for gradually worsening low

back pain radiating to the back of his legs and down to his toes, accompanied by numbness, tingling

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and weakness in his extremities. (Id. at 373-76.) Examination revealed a slow gait, very limited

lumbar range of motion in all planes due to pain and tenderness in the bilateral paraspinals. (Id. at

376.) Dr. Huang recommended physical therapy, continued use of Lyrica, an EMG/NCV to evaluate

peripheral neuropathy and lumbar spine x-rays. (Id. at 376.)

On August 5, 2015, Mobley began physical therapy. (Id. at 472-76.) He reported diffuse

low back pain, which radiated into down his legs into the bottoms of his feet, and worsened when

he stood or walked for long periods, climbed stairs, or lay down. (Id. at 473-74.) He also reported

trouble laying down and sleeping at night, difficulty with dressing, climbing stairs and walking or

standing for long periods due to pain. (Id. at 474-75.) Examination findings included: reduced

lumbar range of motion; decreased strength; positive straight leg raising; positive tenderness to

bilateral paraspinals; labored, but independent, transition from sitting to standing and bed mobility;

and slow, antalgic gait with decreased trunk rotation. (Id.)

In later physical therapy sessions, occurring in August and September 2015, Mobley

reported upper extremity and bilateral feet diabetic neuropathy with some reduction in his low back

pain, however even after the reduction, his pain remained “at a high level.” (Id. at 367-68, 467,

464-66, 470-71.)

An August 19, 2015 EMG result showed “peripheral neuropathy, mixed axonal and

demyelinating, affecting sensory worse than motor fibers, of at least moderate severity overall.”

Sensory responses were absent in the lower limbs. The record notes this was a nondiagnostic study

with regard to lumbosacral radiculopathy due to limited tolerance of the needle examination. (Id.

at 598, 715.)

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On October 20, 2015, Dr. Robin Benis, M.D., examined Mobley at the request of the state

agency (Id. at 509-18.) Mobley reported a history of diabetes with peripheral neuropathy affecting

his hands and feet with severe burning pain, especially in his feet, which caused difficulty standing

and walking for long periods, and pain in his right hand and right knee from injuries sustained in a

2009 motorcycle accident. (Id. at 509.) He told Dr. Benis that he cooked occasionally and helped

care for his children, but his wife did all of the cleaning, laundry and shopping. (Id. at 510.)

Examination findings were positive for his inability to walk on his toes, and revealed ability to walk

on his heels only briefly, ability to perform a limited squat, and mid low back pain with lifting of

both legs. (Id. at 510-11.) Dr. Benis observed he had a normal gait. (Id.) X-rays of his lumbar

spine showed mild disc space narrowing at the L5-S1 level and x-rays of his right hand were normal.

(Id. at 513-14.) Dr. Benis opined that Mobley had mild limitations in standing and walking long

distances and using his hands due to diabetic neuropathy. (Id. at 512.)

On November 12, 2015, Mobley reported worsening neuropathy which he described as

numbness and tingling in his hands, fingers, feet and toes. (Id. at 602-06.) His dosage of Lyrica was

increased to 150 mg twice a day. (Id. at 605).

On November 23, 2015, Mobley was examined by Dr. Huang. (Id. at 597-602). Mobley

described his pain as 10/10 across his lower back and sometimes in both ankles. (Id. at 598.) Dr.

Huang reported that Mobley had moderate to severe diabetic peripheral neuropathy in a

stocking-glove pattern than limits him, had an EMG which was limited due to pain and had tried

physical therapy and home exercises which were also limited by pain. (Id.) Mobley stated he could

not stand longer than one hour before he started getting pain in his feet and dizziness. (Id.) Dr.

Huang’s lumbar examination revealed tenderness with palpation over the L4 and L5 spinous

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processes, sacroiliac joint bilaterally and lumbosacral spinal muscles bilaterally, spasm, limited

range of lumbar motion, and concordant pain over the lumbosacral paraspinals on testing. (Id. at

600.) Neurologic examination revealed absent Achilles reflexes bilaterally and absent sensation to

light touch over the ball of Mobley’s right foot. (Id.) Dr. Huang increased Mobley’s dosage of

Lyrica to three times a day. (Id.)

At an April 2016 appointment, Mobley reported significant numbness and neuropathic pain

in his both feet and hands, and was noted to be “at risk for falls.” (Id. at 699-706). The doctor

referred him for evaluations in endocrinology, optometry and podiatry due to continued numbness

and neuropathy. (Id. at 703.)

On June 3, 2016, Mobley was treated in the emergency department of the Cleveland Clinic

for effusion of the right knee and trigger finger of the left hand. (Id. at 698.) He was referred for

followup with rheumatology and hand surgery. (Id.)

On July 18, 2016, Mobley was treated in the emergency room of University Hospitals for

knee pain, underwent diagnostic testing and was prescribed medications. (Id. at 707-09.)

At an August 2016 examination, Mobley reported decreased energy and felt “drained,”

especially outside in the heat. (Id. at 718-22.) His score on a patient health questionnaire was

indicative for severe depression and he reported that Remeron was not helping as it had in the past.

(Id. at 719.)

Mobley was examined by Daniel Malkamaki, M.D., who was taking over his care from Dr.

Huang, in the MetroHealth Physical Medicine and Rehabilitation clinic on September 16, 2016. (Id.

at 714-17.) He presented with locking symptoms in his upper extremities, much like he had in his

lower extremities, and right knee pain. (Id. at 714-15.) He reported the pain in his right knee and

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bilateral hand/feet regions (the latter from peripheral neuropathy) occurred daily, increased with

bending, standing and walking and was relieved with medication, rest, change of position and ice

or heat. (Id. at 715.) Examination of the right knee revealed concordant pain with resisted patellar

transition during quadricep contraction and moderate to almost severe muscle wasting on the right

side compared to the left. (Id. at 716.) Dr. Malkamaki’s impression was Mobley had right knee

patellofemoral syndrome and likely some osteoarthritis, bilateral hand and foot peripheral

neuropathy symptoms and improved low back pain. (Id. at 716.) Dr. Malkamaki continued

Mobley’s medications with only a trial of Naprosyn due to concern about potential kidney issues.

(Id. at 717.)

For the remainder of 2016 and in 2017, Mobley followed-up in the MetroHealth Family

Practice clinic and continued on the same regimen for treatment of his diabetic polyneuropathy. (Id.

at 710-14; 728-40.) He underwent a diabetic eye examination which revealed nonproliferative

diabetic retinopathy without clinically significant macular edema. (Id. at 741-44.)

C. State Agency Reports

1. Mental Impairments

On November 19, 2015, state agency reviewing psychologist Tonnie Hoyle, Psy.D.,

reviewed the record and opined Mobley was moderately limited in the following areas:

• ability to complete a normal workday and work week without interruptions from

psychologically based symptoms;

• ability to perform at a consistent pace without an unreasonable number and length

of rest periods; and

• ability to respond appropriately to changes in the work setting.

(Id. at 157-59.)

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On April 7, 2106, state agency reviewing psychologist Mary K. Hill, Ph.D., reviewed the

record and opined Mobley was moderately limited in the following areas:

• ability to understand and remember detailed instructions;

• ability to carry out detailed instructions;

• ability to maintain attention and concentration for extended periods;

• ability to complete a normal workday and workweek without interruptions from

psychologically based symptoms and to perform at a consistent pace without an

unreasonable number and length of rest periods;

• ability to interact appropriately with the general public, to accept instructions and

respond appropriately to criticism from supervisors and to get along with

coworkers or peers without distracting them or exhibiting behavioral extremes; and

• ability to respond appropriately to changes in the work setting.

(Id. at 175-78.)

2. Physical Impairments

On November 17, 2015, State agency reviewing physician Maria Congbalay, M.D., opined

that Mobley had the following physical limitations:

• occasionally lifting or carrying 20 pounds;

• frequently lifting or carrying 10 pounds;

• standing and/or walking about six hours in an eight-hour work day;

• sitting about six hours in an eight-hour workday;

• occasionally climb ramps or stains and stoop;

• never climb ladders, ropes, or scaffolds;

• frequently balance, kneel, crouch and crawl; and

• avoid concentrated exposure to vibration and hazards.

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(Id. at 155-57.)

On February 16, 2016, State agency reviewing physician Bradley J. Lewis, M.D., reviewed

Mobley’s file. (Id. at 173-75.) He concurred with the exertional limitations in Dr. Congbalay’s

opinion, but did not find postural limitations in climbing ramps/stairs, kneeling, and crawling nor

avoidance of concentrated exposure to vibration. (Id. at 173-75.)

D. Hearing Testimony

During the August 21, 2017 hearing, Mobley testified to the following:

• He was born in 1969, and was 48 years old on the day of the hearing. (Id. at 124.)

• He went as far as eleventh grade in school, and never received a GED. (Id.)

• He has had no reported income for the past 13 years. He survived by doing odd

jobs for cash, and receiving gifts from his mother. (Id. at 125-26.)

• He weighs 161 pounds. Previously, he weighed 260 pounds, but he has been losing

weight rapidly over the past year. His doctor attributed this to his diabetes. (Id.

at 127.)

• His diabetes causes numbness and shooting pains in his feet. He has to treat his

feet with lotion and check them for cuts, because he cannot feel them, and they can

become infected without his knowledge. (Id. at 128.)

• His diabetes also causes inflammation and swelling on the right side of his body,

including his right knee, and a “pinching, burning” pain from his waist to his

shoulder. (Id. at 129.)

• These symptoms make it hard for him to stand. He wears memory foam inserts in

his shoes. He can stand for no more than 20 minutes. He can walk four to five

minutes before he need to stop. (Id. at 130-31.)

• He has limited flexibility in both hands. (Id. at 131.)

• He can sit for approximately 20 minutes before he needs to get up and walk to ease

his pain. (Id. at 132.)

• He has problems grabbing and holding things with his right hand. He drops things

like cups, and once almost dropped his infant son. (Id. at 132-33.)

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• He cannot tie shoelaces because of the restricted motion in his fingers. (Id. at 133.)

• He cannot get his blood sugar levels under control. (Id. at 134-35.)

• He has been seeing a therapist to treat his depression and bipolar condition for over

a year. (Id. at 136-37.)

• Sometimes, fear prevents him from leaving his house. He moved his things into the

basement because he feels more comfortable there. He lost his mother and his

brother recently, and lost his son in a motorcycle accident. His daughter was shot

in the head, but survived. Losing so many loved ones has been stressful. (Id. at

137-38.)

• He has mood swings, but has never been hospitalized for his mental illness. (Id.

at 138.)

• His pain on a good day is an eight or ten on a scale of zero to ten. Sometimes the

pain is so bad it makes him cry. (Id. at 139.)

• He spends the majority of hi time lying down, trying to reduce the pain. The pain

prevents him from sleeping most of the time. (Id. at 140.)

• He has three children under the age of 18, and two of them live with him. His

youngest child is 5 months old. (Id. at 141-42.)

• His wife suffered from alcohol addiction, but received treatment and is now able

to work and support the family. (Id. at 142.)

The ALJ then posed the following hypothetical question to the VE:

[Assume a hypothetical individual] 48 today, 11th grade education, no work history

with the following limitations and ablitities. This individual would be limited to

light exertion; would never climb ladders, ropes, or scaffolds; is unlimited in the

climbing of ramps and stairs; unlimited in kneeling and crouching; can occasionally

stoop; can frequently balance and crouch; should avoid all exposure to dangerous

machinery, and unprotected heights; is limited to work that does not require fast

production pace and is routine in nature.

(Id. at 143.)

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The VE testified the hypothetical individual would be able to perform representative

“unskilled” jobs in the economy at the “light” level of exertion, such as a housekeeping cleaner, a

sales attendant, and an office helper. (Id.)

The ALJ posed a second hypothetical with different limitations:

Light exertion; never climb ropes, ladders or scaffolds; occasionally climb ramps and

stairs; and occasionally stoop; frequently balance, kneel, crouch and crawl; avoid

concentrated exposure to vibration and . . . all exposure to operating dangerous

moving equipment such as power saws and jackhammers; is limited to work that

does not require fast production pace and is routine in nature.

(Id. at 143-44.) The VE testified these limitations did not change his earlier opinion. (Id. at 144.)

In response to questioning from Mobley’s counsel, the VE testified that if the hypothetical

individual had a limitation to occasional handling, fingering and feeling bilaterally, there would be

no work available. (Id. at 144-45.) The VE stated that employee absences twice monthly on a

regular basis would prevent competitive employment. (Id. at 145.)

III. STANDARD FOR DISABILITY

A disabled claimant may 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 and 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) and 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 he is not currently engaged in “substantial gainful activity”

at the time of the disability application. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the

claimant must show that he suffers from a “severe impairment” in order to warrant a finding of

17

disability. 20 C.F.R. §§ 404.1520(c) and 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) and 416.920(d). Fourth, if the claimant’s impairment or

combination of impairments does not prevent him from doing his past relevant work, the claimant

is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and 416.920(e)-(f). For the fifth and final step, even

if the claimant’s impairment does prevent him from doing his 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), and 416.920(g).

IV. SUMMARY OF COMMISSIONER’S DECISION

The ALJ made the following findings of fact and conclusions of law:

1. The claimant has not engaged in substantial gainful activity since August 17,

2015, the application date;

2. The claimant has the following severe impairments: spine disorder, diabetes

mellitus, depression, and anxiety;

3. 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;

4. After careful consideration of the entire record, the undersigned finds that the

claimant has the residual functional capacity to perform light work as defined

in 20 CFR 416.967(b) with the following limitations. The claimant can never

climb ladders, ropes, or scaffolds. The claimant can occasionally stoop. The

claimant can frequently balance and crouch. The claimant should avoid all

exposure to dangerous machinery and unprotected heights. The claimant is

18

limited to work that does not require fast production pace and is routine in

nature;

5. The claimant has no past relevant work;

6. The claimant was born in 1969 and was 48 years old, which is defined as a

younger individual age 18-49, on the date the application was filed;

7. The claimant has a limited education and is able to communicate in English;

8. Transferability of job skills is not an issue because the claimant does not

have past relevant work;

9. 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;

10. The claimant has not been under a disability, as defined in the Social Security

Act, since August 17, 2015, the date the application was filed.

(Tr. 107-114) (citations omitted).

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 F. App’x 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

19

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, 772-3 (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

20

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 13000, 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

A. Whether the ALJ erred in finding Plaintiff retained the Residual Functional Capacity

to perform work activity

Mobley asserts that the ALJ erred when she concluded that Mobley retained the residual

functional capacity (“RFC”) to perform light work, because her RFC determination failed to

adequately account for Mobley’s symptoms and the limitations imposed by his peripheral

neuropathy. (Doc. No. 14-1 at 16.) He argues that, contrary to the ALJ’s assertion that the medical

evidence of record does not support the degree to which he alleges he is physically limited, medical

evidence fully supports these claims. (Id. at 17.) He asserts that the ALJ overlooked this evidence,

and notes that the evidence that the ALJ cited in support of her opinion included her own

supposition that he probably lifted his three-year-old child in the course of providing parental care.

(Id. at 18-19.)

The Commissioner responds that substantial evidence supports the ALJ’s determination

of RFC, noting that this is not a high standard and very deferential to the opinion of the ALJ. (Doc.

No. 15 at 11-12.) The Commissioner further notes that there is evidence in the record that supports

the ALJ’s determination of RFC. (Id. at 18.)

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The RFC determination sets out an individual’s work-related abilities despite his or her

limitations. See 20 C.F.R. § 416.945(a). A claimant’s RFC is not a medical opinion, but an

administrative determination reserved to the Commissioner. See 20 C.F.R.§ 416.927(d)(2).8 An

ALJ “will not give any special significance to the source of an opinion on issues reserved to the

Commissioner.” See 20 C.F.R.§ 416.927(d)(3). As such, the ALJ bears the responsibility for

assessing a claimant’s RFC based on all of the relevant evidence, 20 C.F.R. § 416.946(c), and must

consider all of a claimant’s medically determinable impairments, both individually and in

combination. See SSR 96 8p, 1996 WL 374184 (SSA July 2, 1996).

“In rendering his RFC decision, the ALJ must give some indication of the evidence upon

which he is relying, and he may not ignore evidence that does not support his decision, especially

when that evidence, if accepted, would change his analysis.” Fleischer, 774 F. Supp. 2d at 880

(citing Bryan v. Comm'r of Soc. Sec., 383 F. App’x 140, 148 (3d Cir. 2010) (“The ALJ has an

obligation to ‘consider all evidence before him’ when he ‘mak[es] a residual functional capacity

determination,’ and must also ‘mention or refute [...] contradictory, objective medical evidence’

presented to him.”)). See also SSR 96 8p at *7, 1996 WL 374184 (SSA July 2, 1996) (“The RFC

assessment must always consider and address medical source opinions. If the RFC assessment

conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was

not adopted.”)). While the RFC is for the ALJ to determine, however, it is well established that the

claimant bears the burden of establishing the impairments that determine his RFC. See Her v.

Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999).

8 This regulation has been superseded for claims filed on or after March 27, 2017. As

Mobley’s application was filed on August 17, 2015, this Court applies the rules and

regulations in effect at that time.

22

It is well established there is no requirement that the ALJ discuss each piece of evidence

or limitation considered. See, e.g., Conner v. Comm’r, No. 16 5175, 2016 WL 4150919, at *6 (6th

Cir. Aug. 5, 2016) (citing Thacker v. Comm’r, 99 F. App’x 661, 665 (6th Cir. 2004) (finding an ALJ

need not discuss every piece of evidence in the record); Arthur v. Colvin, No. 3:16CV765, 2017 WL

784563, at *14 (N.D. Ohio Feb. 28, 2017) (accord). However, courts have not hesitated to remand

where an ALJ selectively includes only those portions of the medical evidence that places a claimant

in a capable light, and fails to acknowledge evidence that potentially supports a finding of disability.

See e.g., Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 724 (6th Cir. 2014) (reversing where the ALJ

“cherry-picked select portions of the record” rather than doing a proper analysis); Germany Johnson

v. Comm'r of Soc. Sec., 313 F. App’x 771, 777 (6th Cir. 2008) (finding error where the ALJ was

“selective in parsing the various medical reports”). See also Ackles v. Colvin, No. 3:14cv00249,

2015 WL 1757474, at *6 (S.D. Ohio April 17, 2015) (“The ALJ did not mention this objective

evidence and erred by selectively including only the portions of the medical evidence that placed

Plaintiff in a capable light.”); Smith v. Comm’r of Soc. Sec., No. 1:11 CV 2313, 2013 WL 943874

(N.D. Ohio March 11, 2013) (“It is generally recognized that an ALJ “may not cherry-pick facts to

support a finding of non-disability while ignoring evidence that points to a disability finding.”);

Johnson v. Comm’r of Soc. Sec., No. 2:16-cv-172, 2016 WL 7208783 (S.D. Ohio Dec. 13, 2016)

(“This Court has not hesitated to remand cases where the ALJ engaged in a very selective review of

the record and significantly mischaracterized the treatment notes.”).

23

Here, the ALJ concluded that Mobley retained the residual functional capacity to perform

“light work”9 with the following limitations:

The claimant can never climb ladders, ropes, or scaffolds. The claimant can

occasionally stoop. The claimant can frequently balance and crouch. The claimant

should avoid all exposure to dangerous machinery and unprotected heights. The

claimant is limited to work that does not require fast production pace and is

routine in nature.

(Tr. 109.) The ALJ explained the basis for her RFC determination as follows:

The medical evidence of record does not support the degree to which the claimant

alleges he is physically limited. An August 2015 EMG revealed peripheral

polyneuropathy, of at least moderate severity overall. However, it was not

diagnostic for lumbar radiculopathy (15F/6). Detracting from the persuasiveness

of his arguments is the fact that physical examinations have revealed normal

findings (15F, 16F). Instead, these physical examinations findings and the

diagnostic tests support the conclusion the claimant is capable of exerting and/or

lifting and carrying up to ten pounds frequently and up to twenty pounds

occasionally. This is not entirely unreasonable given the fact the claimant has a

young child that he more likely than not provides some parental care and

supervision that would occasionally require him to lift up the child or carry him.

The child was with the claimant when he had his consultative examination with

the psychologist (8F).

The claimant saw internal medical consultative examiner Robin Benis, A.D., in

October 2015 (5F). Upon physical examination, the claimant had normal gait,

could not walk on his toes, hard partial squat, normal stance, no assistive devices,

9 Per 20 C.F.R. § 416.967(b), “light work involves lifting no more than 20 pounds at a

time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though

the weight lifted may be very little, a job is in this category when it requires a good deal

of walking or standing, or when it involves sitting most of the time with some pushing

and pulling of arm or leg controls. To be considered capable of performing a full or wide

range of light work, you must have the ability to do substantially all of these activities. If

someone can do light work, we determine that he or she can also do sedentary work,

unless there are additional limiting factors, such as loss of fine dexterity or inability to sit

for long periods of time.” Furthermore, “the full range of light work requires standing or

walking, off and on, for a total of approximately six hours of an eight-hour work day.

Sitting may occur intermittently during the remaining time.” Social Security Ruling

(SSR) 83-10, “Titles II and XVI: Determining Capacity To Do Other Work-The

Medical/Vocational Rules of Appendix II.”

24

was able to rise from his chair, mid low back pain lifting the right and left leg,

normal leg strength and range of motion throughout, and no limitations in his

bilateral hands (5F). An x-ray of the claimant’s lumbar spine revealed mild disc

space narrowing at L5-S (5F/5). An x-ray of the claimant’s right hand revealed

normal findings (5F/5). The claimant was diagnosed with hypertension, diabetes,

neuropathy, right knee pain, and ambulation difficulty (5F/5). Dr. Benis opined

that the claimant has mild limitations to standing and walking long distances due

to diabetic neuropathy and mild limitations of using his hand due to his diabetic

neuropathy (5F/5). The undersigned assigns this opinion partial weight, as it is

supported by a detailed examination notes and it is consistent with the medical

evidence of record. However, lesser weight because r, [sic] Dr. Benis does not

specify the exact functional limitations that would result from the claimant’s

severe impairments.

State agency medical consultants Maria Congbalay, M.D., and Bradley Lewis,

M.D., opined that the claimant could perform light work; never climb ladders,

ropes and scaffolds; occasionally climb ramps and stairs and stoop; frequently

balance, kneel, crouch, and crawl; and should avoid concentrated exposure to

hazards (1A, 3A). The undersigned assigns these opinions considerable weight,

as they are supported with detailed explanation from the record and are consistent

with the objective medical evidence as a whole.

(Tr. 110-11.)

For the following reasons, this Court finds the ALJ failed to meaningfully address the

medical evidence regarding Mobley’s neuropathy. Although the ALJ discussed some of the medical

evidence, the ALJ failed to address the majority of Mobley’s treatment records, she failed to

acknowledge or address the abnormal objective findings documented by his physicians, and she

misstated the evidence in several respects. As set forth below, the deficiencies in the ALJ’s decision

are so pervasive and severe as to preclude meaningful appellate review.

In explaining the basis for her RFC determination, the ALJ first cites two sets of medical

treatment records, all from MetroHealth, in the period between June 2016 and June 2017. (Tr. 110.)

These records document a combination of primary care, mental health care, optometry care and pain

management. The ALJ states broadly that the records she cites - which include 18 pages covering

25

5 month in one instance and 22 pages covering 4 months in another - “revealed normal findings.”10

This is true. However, they also revealed findings which provide a detailed medical basis for

Mobley’s claims of impairment in his ability to stand and walk, including “[t]he patient has

concordant pain provocated with right knee resisted patellar translation during quadricep contraction.

There is moderate to almost severe VMO wasting on the right side compared to the left.” (Id. at

716.)

The only record the ALJ identified by page number is from Mobley’s September 16, 2016,

initial examination by Dr. Malkamaki, who was taking over Mobley’s pain management from Dr.

Huang. As the ALJ explains, this record documents that “[a]n August 2015 EMG revealed

peripheral polyneuropathy, of at least moderate severity overall. However, it was not diagnostic for

lumbar radiculopathy (15F/6).” (Id.) However, in discussing the EMR Dr. Malkamaki also noted

they showed that “sensory responses are absent in the lower limbs.” (Id. at 715.) Dr. Malkamaki

explained that the study of Mobley’s lumbar radiculopathy had been “nondiagnostic” because

Mobley had not been able to tolerate the full needle examination. (Id.) The ALJ did not

acknowledge that the record also documents that Mobley was experiencing“locking symptoms” in

his upper extremities that was “intermittent, but occurs daily,” and pain in his right knee so extreme

that he had sought treatment in the emergency room three times. (Id. at 714-15.) Dr. Malkamaki

noted Mobley’s pain “increases with bending, standing and walking and is relieved by medication,

rest, change of position and ice/heat.” (Id. at 715.)

10 The 40 pages of records cited included mental health, primary care, pain management,

and even optometry (Tr. 741-49)

26

Next, the ALJ referenced the consultative examination of Dr. Benis. The ALJ gave Dr.

Benis’ opinion both “partial weight” because of its support and consistency with other evidence, and

“lesser weight” because it did not contain specific functional limitations. Dr. Benis’ examination

revealed that Mobley had functional mobility limitations including that he could not walk on his toes,

could only briefly walk on his heels and could only perform a limited squat. (Tr. 510.) The ALJ

noted that x-rays of Mobley’s right hand were normal, but this is consistent with a diagnosis of

neuropathy, which is a disease of the nervous system rather than the skeletal system. He opined that

Mobley would have some limitations in standing, walking long distances and using his hands due

to diabetic neuropathy. (Id.) While Dr. Benis did not specify what he meant by “some” limitation

in standing, neither the ALJ nor the state agency reviewing physicians attempted to explain how

these findings were consistent with an RFC of light work, which is distinguished from sedentary

work by the fact that it “requires a good deal of walking or standing. . . . for a total of approximately

six hours of an eight-hour work day. Sitting may occur intermittently during the remaining time.”

S.S.R. 83-10, “Titles II and XVI: Determining Capacity To Do Other Work-The Medical/Vocational

Rules of Appendix II.”

The ALJ instead relied heavily on the RFC determinations of the state agency reviewing

physicians who considered the record for the initial determination and reconsideration of Mobley’s

claim, according them “considerable weight.” (Tr. 111.) However, she references the two opinions

as if they were fully consistent, ignoring the differing limitations in climbing ramps/stairs, kneeling,

crawling, and avoidance of concentrated exposure to vibration. (Id. at 155-57, 173-75.) More

importantly, both state agency reviewing physicians support their credibility assessment with the

broad statement that “MER shows normal gait,” although the “Findings of Fact and Analysis of

27

Evidence”in the initial determination includes multiple notations that indicate abnormal findings in

these areas, including:

• “ROM was very limited in all plains d/t pain”

• “Gait slow”

• “Decreased strength BLE [bilateral lower extremeties]”

• “Gait independent w/o assistive device, antalgic, slow, and decreased trunk

rotation”

(Id. at 152-53.) The “Findings of Fact and Analysis of Evidence” in the reconsideration include the

following additional evidence:

• “gait w/o AA, antalgic, slow decreased trunk rotation”

• “Strength 4/5, sensation intact, positive tenderness to bilat paraspinals, SLR bilat

positive at 70-80 degrees”

• “Sensory responses are absent in the lower limbs”

(Id. at 169-70.) In fact, only one of the treatment records cited in the earlier decisions records

“normal gait.”11

Other evidence that the ALJ failed to address includes Mobley’s consistent report of daily

pain, numbness and tingling in his hands and feet. (Id. at 367, 374, 380, 384, 386, 487, 509, 598,

603, 699, 715.) He repeatedly reported to medical providers that his symptoms were aggravated by

prolonged standing and walking, stair climbing, sleeping, and bending. (Id. at 473, 598, 715.) The

medical records indicate the doctors found these reports credible: they repeatedly increased Mobley’s

dosage of nerve pain medication and reported that other treatment modalities had not been effective.

(Id. at 382, 598, 600, 605.)

11 This finding is also in the consultative opinion of Dr. Benis.

28

While an ALJ need not discuss every piece of evidence, here the ALJ mentioned treatment

records which supported the RFC while failing to acknowledge or evaluate treatment records that

did not. As noted above, an ALJ “may not ignore evidence that does not support his decision,

especially when that evidence, if accepted, would change his analysis.” Fleischer, 774 F. Supp. 2d

at 880 (citing Bryan, 383 F. App’x at 148 (“The ALJ has an obligation to ‘consider all evidence

before him’ when he ‘mak[es] a residual functional capacity determination,’ and must also ‘mention

or refute [...] contradictory, objective medical evidence’ presented to him.”)). See also Gentry, 741

F.3d at 724 (reversing where the ALJ “cherry-picked select portions of the record” rather than doing

a proper analysis); Germany Johnson, 313 F. App’x at 777 (finding error where the ALJ was

“selective in parsing the various medical reports”); Ackles, 2015 WL 1757474 at *6 (“The ALJ did

not mention this objective evidence and erred by selectively including only the portions of the

medical evidence that placed Plaintiff in a capable light.”)

Further, instead of considering the testimony and reports of Mobley’s activities of daily

living in evaluating his symptoms, as required by 20 C.F.R. § 416.929(c)(3), the ALJ substituted

supposition. The ALJ inferred that Mobley “more likely than not . . . occasionally” lifts and carries

his “young child” because the child was with Mobley when he had his consultative examination with

the psychologist. (Id. at 110.) The ALJ omitted the significant detail that Mobley’s wife - the

child’s mother - was present for the examination, and was caring for their son, who was 3 years old

at the time.12 (Id. at 619-20.) The weight of Mobley’s son at the time is not noted in the record. Dr.

12 Although the child’s weight is not noted in the record, the Centers for Disease Control

state that an average 3-year-old boy will weigh between 26.5 to 38.5 pounds. Growth

charts, 2 to 20 years: Boys, Centers for Disease Control,

https://www.cdc.gov/growthcharts/data/set1clinical/cj41l021.pdf (last visited 7/24/20).

29

Flowers’ report also noted that Mobley sometimes needed help with personal care when his feet were

hurt or numb, relied on his wife or older children to drive him to appointments, did not clean his

house or do laundry due to his pain, and could only shop with the assistance of a motorized carts,

all details which the ALJ omitted. (Id. at 619.) When asked about his capacity to hold and carry

objects in everyday life at his hearing, Mobley testified that he has problems grabbing and holding

things with his right hand, cannot tie shoelaces because of the restricted motion in his fingers, and

often drops things like cups, and once almost dropped his infant son. (Id. at 132-33.) The testimony

that he had almost dropped a much smaller child is in contrast to the ALJ’s supposition regarding

his capacity to lift and carry a three year old, and the ALJ provided the Court with no guidance on

how to reconcile this contradiction because she omitted reference to the testimony regarding his

activities of daily living in her decision.13

The Commissioner points out that there is other evidence in the medical record that can be

used to support the ALJ’s assertions that Mobley had normal gait, strength, manipulative abilities,

coordination, range of motion, straight leg raise testing, sensation, and reflexes, and no evidence of

atrophy, swelling, or joint deformity. (Doc. No. 15 at 18.) However, none of these records were

cited by the ALJ. The Commissioner cannot cure a deficient opinion by offering explanations that

13 The Commissioner points out that the ALJ stated earlier in the opinion that Mobley

was able to prepare simple meals and perform light housework. (Doc. No. 15 at 19.)

This section of the decision references the Function Report filled out by Mobley as part

of his initial application on September 23, 2015. (Tr. 265-72.) In this report, Mobley

states that he can prepare “sandwiches and spaghetti and fries” about once a week, and

washes the dishes once a week, with the support of his family, who stand at the sink with

him to help him finish. (Id. at 269.) He also states he sometimes feeds his dog, and

sometimes walks her in his yard, but often receives help from his wife and children with

these tasks. (Id. at 265.) Finally, he wrote that he goes shopping for food about once a

month. (Id. at 270.) It is not clear how these limited activities support the ALJ’s RFC

determination, and the ALJ did not provide any explanation of her reasoning.

30

were not offered by the ALJ. As courts within this district have noted, “arguments [crafted by

defense counsel] are of no consequence, as it is the opinion given by an administrative agency rather

than counsel's ‘post hoc rationale’ that is under the Court's consideration.” See, e.g., Blackburn,

2013 WL 3967282 at *8; Cashin v. Colvin, No. 1:12 CV 909, 2013 WL 3791439 at * 6 (N.D. Ohio

July 18, 2013); Jaworski v. Astrue, No. 1:10 CV 02936, 2012 WL 253320 at *5 (N.D. Ohio Jan.

26, 2012). Further, all but one of the records cited by the Commissioner is from the beginning of

the applicable period: 2015. There is considerable evidence in the record that Mobley’s diabetic

neuropathy is a progressive condition that was worsening throughout the period at issue. His

condition is described as “worsening neuropathy” in the records cited by the Commissioner, and they

clearly document that the impairment worsened in his feet over time, and spread from his feet to his

hands. (Tr. 603.)

The Commissioner is correct that the “substantial evidence” standard is highly deferential

to the ALJ. However, even this deferential standard requires that the ALJ acknowledge evidence

that is not supportive of her position, and provide sufficient explanation of her reasoning topermit

meaningful appellate review. As noted supra, 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, 774 F. Supp. 2d at 877 (quoting Sarchet, 78 F.3d at 307). See also Shrader, No.

11 13000, 2012 WL 5383120 at *6 (“If relevant evidence is not mentioned, the Court cannot

determine if it was discounted or merely overlooked.”). Accordingly, the Court recommends a

remand is necessary, thereby affording the ALJ the opportunity to properly address the evidence of

the impact of Mobley’s symptoms on his functional capacity, including the evidence indicting that

31

his impairment was worsening over time.

B. Whether the ALJ erred in evaluating the opinion evidence from Plaintiff’s treating

mental health sources

Next, Mobley asserts that the ALJ did not apply proper legal standards to the opinions of

Dr. Vaka and Mr. Rubin expressed in their joint medical source statement, dated March 8, 2016.

(Doc. No. 14-1 at 21.) He notes that the ALJ did not acknowledge Dr. Vaka’s joint authorship of

the statement, and asserts that she therefore failed to apply the treating physician rule. (Id. at 22.)

The Commissioner responds that Dr. Vaka did not qualify as a treating physician at the time

of the opinion, and therefore the ALJ properly weighed the evidence in the medical source statement.

(Doc. No. 15 at 13-14.)

As this matter is being remanded for further proceedings, and in the interests of judicial

economy, the Court will not consider Mobley’s second assignment of error in depth. However,

Mobley is correct that the ALJ failed to acknowledge Dr. Vaka’s co-authorship of the joint medical

source statement in her decision, and the ALJ should take the opportunity of remand to correct this

error and clarify the rationale behind the weighing of this opinion.

VII. CONCLUSION

For the foregoing reasons, the Commissioner’s final decision is VACATED and

REMANDED for further consideration consistent with this opinion.

IT IS SO ORDERED.

s/Jonathan D. Greenberg

Jonathan D. Greenberg

United States Magistrate Judge

Date: July 24, 2020

32