Opinion

Jones v. Commissioner of Social Security

Court: District Court, N.D. Ohio
Filed: Jan 12, 2022
Cited by: 0 cases
Authority: More cited than 28.0%

The opinion

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISON

BERNARD JONES, ) CASE NO. 5:20-CV-02065-CEH

)

Plaintiff, ) CARMEN E. HENDERSON

) UNITED STATES MAGISTRATE

v. ) JUDGE

)

COMMISSIONER OF SOCIAL SECURITY, ) MEMORANDUM OF OPINION &

) ORDER

Defendant, )

)

I. Introduction

Plaintiff, Bernard Jones (“Jones” or “Claimant”), seeks judicial review of the final

decision of the Commissioner of Social Security denying his applications for Supplemental

Security Income (“SSI”) and Disability Insurance Benefits (“DIB”). This matter is before me by

consent of the parties under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (ECF No. 12). Because

the ALJ followed proper procedures and his findings are supported by substantial evidence, the

Court AFFIRMS the Commissioner’s final decision denying to Jones SSI and DIB. Additionally,

Defendant’s Motion to File a Surreply (ECF No. 19) is GRANTED. Defendant’s Surreply (ECF

No. 19-1) is deemed filed as of August 5, 2021.

II. Procedural History

On August 11, 2017, Claimant filed for DIB. Claimant also applied for SSI on July 20,

2017. In both applications, Claimant alleged disability beginning April 1, 2008. These claims

were denied initially on December 4, 2017, and upon reconsideration on June 11, 2018. Claimant

requested a hearing before an administrative law judge (“ALJ”). (ECF No. 12, PageID #: 275).

On October 8, 2019, an ALJ held a hearing, during which Claimant, represented by counsel, and

an impartial vocational expert testified. (ECF No. 12, PageID #: 130-156). On November 6,

2019, the ALJ issued a written decision finding Claimant was not disabled. (ECF No. 12,

PageID #: 107-128). The ALJ’s decision became final on July 13, 2020, when the Appeals

Council declined further review. (ECF No. 12, PageID #: 76-82).

On September 15, 2020, Claimant filed his Complaint to challenge the Commissioner’s

final decision. (ECF No. 1). The parties have completed briefing in this case. (ECF Nos. 15, 17,

18, 19). Claimant asserts the following issues on appeal:

1. The ALJ claimed that he would not apply the doctrine of res

judicata yet erred when he proceeded to adopt ALJ Shinn’s

physical limitations.

2. The ALJ committed harmful error when his RFC did not

consider the effect of the combination of Jones’ severe

impairments on his ability to engage in substantial gainful

activity on a sustained basis.

3. The ALJ committed harmful error when he failed to find Jones’

testimony credible and failed to apply the guidelines contained

in Social Security Ruling 16-3p.

(ECF No. 15 at 1).

III. Background

A. Previous Application1

Claimant previously applied for SSI and DIB alleging disability onset date of April 14,

2009. (ECF No. 12, PageID #: 160). Following a hearing before an ALJ, the ALJ determined that

Claimant was not under a disability from April 14, 2009 through February 11, 2013, the date of

the decision. (ECF No. 12, PageID #: 169). In the 2013 ALJ hearing decision, the ALJ found that

Claimant had the residual functional capacity (“RFC”) “to perform light work as defined in 20

1 The application at issue here is allegedly Claimant’s fifth attempt to obtain disability

benefits. (ECF No. 12, PageID #: 495).

CFR 404.1567(b) and 416.967(b) with certain restrictions. Specifically, the claimant can never

climb ladders, ropes or scaffolds, but can occasionally climb ramps and stairs. He can

occasionally stoop and crouch. The claimant must be able to alternate his position between

sitting and standing approximately every hour.” (ECF No. 12, PageID #: 165). Claimant’s

request for review of the 2013 ALJ decision was denied by the Appeals Council on June 16,

2014. (ECF No. 12, PageID #: 174). Claimant did not further challenge the 2013 ALJ decision.

B. Relevant Hearing Testimony

During the hearing, Jones testified that he was unable to work due the pain in his lower

back and sleep deprivation caused by his back pain. (ECF No. 12, PageID #: 136-137). He

testified the pain never went away but that it changed in intensity. (ECF No. 12, PageID #: 137).

Jones testified that he was taking Neurontin, which helped with the pinching sensation in his

back but not the overall pain. (ECF No. 12, PageID #: 138-139). Jones described his pain as pain

traveling down his legs to his ankles. (ECF No. 12, PageID #: 148). He had problems with his

balance. (ECF No. 12, PageID #: 149). He stated that when washing dishes, he could tolerate

standing for about ten minutes before needing to sit down and could then return. (ECF No. 12,

PageID #: 149). He testified that his knee and ankle had also been bothering him, but he had not

treated for those issues at the time of the hearing. (ECF No. 12, PageID #: 141). Jones also

testified that he was suffering from anxiety and depression (ECF No. 12, PageID #: 144) and that

he had problems with his short-term memory (ECF No. 12, PageID #: 150).

When asked to describe his typical day, Jones states that he no longer cooks, he does not

perform serious cleaning, laundry, mow his law, or grocery shop. (ECF No. 12, PageID #: 146-

147). However, he stated that he could walk to the grocery store if it was to pick up a limited

number of items. (ECF No. 12, PageID #: 147). Jones testified that he took two naps a day. (ECF

No. 12, PageID #: 150).

C. Relevant Medical Evidence

The ALJ summarized Claimant’s health records and symptoms:

Diagnostic imaging of the lumbar spine, dated October 17, 2017,

indicated mild bulging from the L4 through S1 vertebral levels,

with minimal foraminal narrowing at the L5/S1 vertebral joint, but

no canal stenosis or compressive pathology at any lumbar level,

and stable since 2013 (C5F/1-2). […]

The claimant is not a candidate for surgery or narcotic pain

medications, and recommendations for treatment have been

restricted to heat, stretching and exercise, and non-narcotic

medications (C6F/1), (C12F/9).

The claimant reports a very good benefit from the use of a

combination of the prescription medications “Gabapentin” and

“Topamax” (C15F/3, 9), (C17F/3), (C19F/2). He has reported

numerous side effects from these medications in reports to the

Agency (C4E/7), (C6E/5), (C9E/8), but has routinely denied side

effects, in reports to his prescriber (C12F/6), (C15F/3, 9),

(C17F/3), (C19F/2).

He has followed no other discernible form of treatment, whether

conservative in nature, as by a course of physical therapy, or more

invasive, as by a course of injection therapy through pain

management. Reports of injections in 2015 are reported in the

record, but no such evidence was included. Clinical examinations

included in the record have consistently, albeit not universally,

reported either minimally adverse, or normal findings, including

one dated October 14, 2015, which reported tenderness to

palpation, but able to flex 70-80 degrees and rotate 20 degrees,

with good strength and tone, and a normal heel walk (C6F/6), one

dated May 9, 2018, which reported tenderness to palpation but

good range of motion [80 degrees flexion and normal otherwise],

with negative straight leg raises, normal gait, strength, reflexes and

sensory function (C9F), or one dated April 12, 2019, which

reported normal motor and sensory function and normal reflexes

(C18F/4).

[. . .]

In terms of the claimant’s alleged psychological disorders, he was

diagnosed with mood disorder-not otherwise specified, on

September 6, 2013 (C1F/1) and with depression, on May 11, 2016

(C2F/6). He was diagnosed with anxiety disorder-not otherwise

specified, and cannabis abuse, each on September 6, 2013 (C1F/1).

While these findings would be consistent with the claimant’s

allegations of depression and anxiety, the record, when considered

as a whole, is not supportive of the contention that the existence of

these impairments would be preclusive of all types of work.

The claimant’s cannabis dependence is among the earliest of his

diagnoses, and he concedes regular use for several years (C10F/2).

The presumption exists that there is no period of sobriety

evidenced in the record. However, because there are no limitations

documented in the record, which would correspond to a finding of

‘disabled’, the claimant’s cannabis abuse is not material to the

conclusions announced in this decision.

The claimant’s treatment has been, almost exclusively, confined to

the use of psychotropic medications. He reports side effects of

drowsiness with their use (C6E/5), but concedes their positive

effect on attenuating his symptoms (C7E/1), (C7F/2), (C9F/1),

(C18F/4). He has twice begun a regimen of counseling, but his first

ended after seven months and eight visits in 2013 (C1F/2) and his

second ended after one month and single visit, in 2018 (C13F/1).

[. . .]

Likely a function of his want of formal treatment, the claimant has

been assigned a single global assessment of function score. That

score, sixty (C1F/1), denotes no more than moderate difficulties of

social or occupational function. However, this very singularity of

issuance renders highly dubious, the value of these scores as an

analytical tool. Global Assessment of Function Scores were

intended to alert treatment providers to the patient’s level of

function during a specified period. If no period was specified, they

were effective only as to the date issued. Nowhere in this claim are

these scores issued with sufficient regularity as to permit the

inference of a particular level of function, or even a particular

range of function, for one full year, and so, by definition, these

scores do not constitute an opinion addressed to a severe

impairment. Such validity as they may have once had is now

further diluted by the discontinuance of their use in the Diagnostic

and Statistical Manual of Mental Illness-Fifth Edition, now in

general use. These scores cannot serve as any useful basis in

arriving at the conclusions announced in this Decision.

(ECF No. 12, PageID #: 116-118).

D. Opinion Evidence

1. State Agency Reviewing Physicians, Leon Hughes, M.D., and Stephen

Sutherland, M.D.

State agency reviewing physicians Dr. Leon Hughes and Dr. Stephen Sutherland opined

that Claimant had the ability to perform light work with additional limitations, including that he

can never climb ladders, ropes, or scaffolds, but can occasionally climb ramps and stairs,

occasionally stoop and crouch, and be allowed to alternate between sitting and standing every

hour. (ECF No. 12, PageID #: 189, 225).

2. State Agency Reviewing Psychologists, Bruce Goldsmith, Ph.D., and Cindy

Matyi, Ph.D.

State agency reviewing psychologist Dr. Bruce Goldsmith opined that Claimant did not

have any limitation is his understanding and memory, sustained concentration and persistence, or

adaptation, but that he was moderately limited in his abilities to interact appropriately with the

general public and to accept instructions and respond appropriately to criticism from supervisors,

and not significantly limited in his abilities to get along with coworkers or peers and maintain

socially appropriate behavior and adhere to social appropriate standards of neatness and

cleanliness. (ECF No. 12, PageID #: 190). Dr. Goldsmith opined that Claimant can “interact

superficially with others.” (ECF No. 12, PageID #: 190). Dr. Goldsmith further explained that

Claimant “can perform simple to mod[erately] complex tasks [without] sustained social

interactions with general public.” (ECF No. 12, PageID #: 191).

On reconsideration, Dr. Cindy Matyi opined that Claimant was moderately limited in his

ability to understand and remember detailed instructions and explained that Claimant was

depressed, anxious, and somatically preoccupied with restricts his capacity for detailed/complex

tasks but that he is able to comprehend and remember simple (1-2 step) and occasional complex

(3-5 step) instructions. (ECF No. 12, PageID #: 226). Dr. Matyi opined that Claimant was

moderately limited in is ability to maintain attention and concentration for extended periods,

work in coordination with or in proximity to others without being distracted by them, complete a

normal workday and workweek with interruptions from psychologically based symptoms and

perform at a consistent pace without an unreasonable number and length of rest periods, interact

appropriately with the general public, accept instructions and respond appropriately to criticism

from supervisors, and respond appropriately to changes in the work setting. (ECF No. 12,

PageID #: 226-227). Dr. Matyi also opined that Claimant was not significantly limited in his

ability to “maintain socially appropriate behavior and to adhere to basic standards of neatness

and cleanliness” and further explained this opinion was due to “[l]egal history, impulsive,

misinterprets interpersonal nuance at times. Regardless, the claimant can interact adequately on a

superficial basis.” (ECF No. 12, PageID #: 227).

3. Consultative Physical Examiner, Mark Vogelgesang, M.D.

Dr. Mark Vogelgesang performed a consultative physical examination of Claimant on

May 9, 2018. Following that examination, Dr. Vogelgesang opined that Claimant could perform

light lifting of up to 20 pounds but may have to avoid extensive bending or twisting. (ECF No.

12, PageID #: 489).

4. Consultative Psychological Examiner, E.M. Bard, Ph.D.

Psychological consultant Dr. E.M. Bard examined Claimant in November 2017 and May

2018 and gave two opinions related to Claimant’s mental impairments and abilities. (ECF No.

12, PageID #: 475-480, 495-500). Following the initial consultation, Dr. Bard opined that

Claimant had a normal range of ability and limitation in understanding, carrying out and

remembering instructions, both one step and complex. (ECF No. 12, PageID #: 480). With

respect to Claimant’s ability to concentrate, persist, and maintain pace, Dr. Bard opined “The

claimant performed within the Average range on the mental status examination. He exhibits no

unusual problems in regard to his concentration and persistence. He did not require questions to

be repeated or simplified. His performance in this area of functioning was within a normal

range.” (ECF No. 12, PageID #: 480). With respect to Claimant’s abilities and limitations in

maintaining effective social interaction on a consistent and independent basis with supervisors,

co-workers, and the public, Dr. Bard opined that Claimant’s overall performance was

“substandard”. (ECF No. 12, PageID #: 480). Finally, Dr. Bard opined that Claimant had a low

average ability to deal with work pressures in a competitive work setting. (ECF No. 12, PageID

#: 480). Six months later, Dr. Bard opined in a substantially similar manner. (ECF No. 12,

PageID #: 495-500). Dr. Bard revised her opinion only insofar as she suggested some limitation

in Claimant’s ability to adapt to day-to-day stressors.

IV. The ALJ’s Decision

The ALJ made the following findings relevant to this appeal:

This claim was decided under the auspices of Acquiescence Ruling

98-4 (6) [colloquially, the Drummond Ruling]. However, because

of the introduction of evidence, new and material to the

determination of disability, it is found that it would not be

appropriate to be bound, in their entirety, by the findings of ALJ

Shinn (C1A).

[. . .]

In asserting an alleged onset date of April 1, 2008, the claimant has

impliedly requested reopening of one or more of his prior claim(s).

However, the claimant has met none of the prerequisites for such

re-opening, as set forth at 20 CFR 404.988 and 989 and 20 CFR

416.1488 and 1489. Accordingly, and having considered all

relevant criteria, including the potential application of SSR 91-5p,

I nevertheless find no basis to re-open the claimant’s prior

application(s). This decision covers the period from and after

February 12, 2013 [the day after the date of ALJ Shinn’s decision

in the claim(s) filed February 4, 2011]. As to the period between

April 1, 2008 and February 11, 2013, this claim is dismissed.

(ECF No. 12, PageID #: 110-111).

2. The claimant has not engaged in substantial gainful activity

since February 12, 2013, the alleged onset date (20 CFR 404.1571

et seq., and 416.971 et seq.). Except that this finding recites the

alleged onset date for the present claim, it adheres to that of the

previous decision

3. The claimant has the following severe impairments:

degenerative disc disease of the lumbar spine, mood disorder-not

otherwise specified, depression, anxiety disorder-not otherwise

specified and cannabis abuse (20 CFR 404.1520(c) and

416.920(c)). This finding departs from that of the previous

decision, in order to account for the severe impairments

documented in the present evidence.

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). This finding adheres to that of the previous decision.

5. After careful consideration of the entire record, I find that the

claimant has the residual functional capacity to perform light work

as defined in 20 CFR 404.1567(b) and 416.967(b) except that the

claimant must be afforded the opportunity to alternate between

sitting and standing once each hour; the claimant may occasionally

stoop, crouch, climb ramps and stairs, but may never climb

ladders, ropes or scaffolds; the claimant is limited to the

performance of simple, routine, repetitive tasks, undertaken in a

setting free of production-rate pace, which setting requires no more

than frequent interaction with coworkers, supervisors and the

public. This finding departs from that of the previous decision, in

order to accommodate the current state of the impairments

documented in the present evidence.

10. Considering the claimant’s age, education, work experience,

and residual functional capacity, there are jobs that exist in

significant numbers in the national economy that the claimant can

perform (20 CFR 404.1569, 404.1569(a), 416.969, and

416.969(a)). This finding adheres to that of the previous decision.

11. The claimant has not been under a disability, as defined in the

Social Security Act, from February 12, 2013, through the date of

this decision (20 CFR 404.1520(g) and 416.920(g)). Except that

this finding recites the alleged onset date for the present claim, it

adheres to that of the previous decision.

V. Law & Analysis

A. Standard of Review

The 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.” Winn v.

Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see also 42 U.S.C. § 405(g).

“[S]ubstantial 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.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)

(quoting Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)).

“After the Appeals Council reviews the ALJ’s decision, the determination of the council

becomes the final decision of the Secretary and is subject to review by this Court.” Olive v.

Comm’r of Soc. Sec., No. 3:06 CV 1597, 2007 WL 5403416, at *2 (N.D. Ohio Sept. 19, 2007)

(citing Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990); Mullen v. Bowen, 800 F.2d 535,

538 (6th Cir. 1986) (en banc)). If the Commissioner’s decision is supported by substantial

evidence, it must be affirmed, “even if a reviewing court would decide the matter differently.”

Id. (citing 42 U.S.C. § 405(g); Kinsella v. Schweiker, 708 F.2d 1058, 1059–60 (6th Cir. 1983)).

B. Standard for Disability

The Social Security regulations outline a five-step process that the ALJ must use in

determining whether a claimant is entitled to supplemental-security income or disability-

insurance benefits: (1) whether the claimant is engaged in substantial gainful activity; (2) if not,

whether the claimant has a severe impairment or combination of impairments; (3) if so, whether

that impairment, or combination of impairments, meets or equals any of the listings in 20 C.F.R.

§ 404, Subpart P, Appendix 1; (4) if not, whether the claimant can perform her past relevant

work in light of her residual functional capacity (“RFC”); and (5) if not, whether, based on the

claimant’s age, education, and work experience, she can perform other work found in the

national economy. 20 C.F.R. § 404.1520(a)(4)(i)–(v); Combs v. Comm’r of Soc. Sec., 459 F.3d

640, 642–43 (6th Cir. 2006). The claimant bears the ultimate burden of producing sufficient

evidence to prove that she is disabled and, thus, entitled to benefits. 20 C.F.R. § 404.1512(a).

Specifically, the claimant has the burden of proof in steps one through four. Walters v. Comm’r

of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the Commissioner at step

five to establish whether the claimant has the residual functional capacity to perform available

work in the national economy. Id.

C. Discussion

Claimant raises three issues on appeal, but within those issues he raises the following: 1)

whether the ALJ improperly applied res judicata; 2) whether the ALJ properly determined that

Claimant did not meet Listings 12.04 and 12.06; 3) whether the RFC is supported by substantial

evidence; and 4) whether the ALJ fairly considered Claimant’s subjective symptom analysis

under SSR 16-3p.

1. The ALJ did not improperly apply res judicata.

In his first issue, Jones argues that the ALJ improperly applied res judicata by “adopting

the same physical limitations” as the 2013 ALJ decision despite having acknowledged that

Claimant had produced new and material evidence relating to his impairments. (ECF No. 15 at

10). The Commissioner argues that the ALJ did not improperly apply res judicata, but, instead,

based his decision on a review of the evidence and the fact that the two RFCs included the same

physical limitations is supported by the record. (ECF No. 17 at 11). The Court agrees with the

Commissioner that res judicata is not involved in this case.

Res judicata “‘bars attempts to relitigate the same claim[.]’” Earley v. Comm’r of Soc.

Sec., 893 F.3d 929, 933 (6th Cir. 2018) (quoting Groves v. Apfel, 148 F.3d 809, 810 (7th Cir.

1998)). As it relates to social security claims, where an individual “files a second application for

the same period of time finally rejected by the first application and offers no cognizable

explanation for revisiting the first decision, res judicata would bar the second application.”

Earley, 893 F.3d at 933 (clarifying Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 842 (6th

Cir. 1997) and Acquiescence Ruling 98-4(6), 1998 WL 283902, at *3 (June 1, 1998)).

Here, Claimant’s subsequent application alleged an onset date of April 1, 2008. The ALJ

properly determined that the period between April 1, 2008 and February 11, 2013 was

adjudicated in the prior claim and required dismissal. (ECF No. 12, PageI #: 110-111). Claimant

does not assert any error in that finding.

The ALJ explicitly stated that the decision covers February 12, 2013 through November

6, 2019, the date it was issued, which is a period of time outside of the 2013 ALJ decision. (ECF

No. 12, PageID #: 110-111). The ALJ also acknowledged that Claimant had introduced new

evidence material to the determination of disability, and he was not, therefore, bound by the

findings in the 2013 ALJ decision. Moreover, the decision demonstrates that the ALJ “relied on

an extensive body of evidence collected after the decision denying [Claimant’s previous]

application.” Amburgey v. Comm’r of Soc. Sec., 751 App’x 851, 861-862 (6th Cir. 2018). Here,

the ALJ considered the records of Claimant’s physical treatment since 2013 and decided on an

RFC that fit the limitations supported by the record. For example, the ALJ discussed the 2017

diagnostic imaging of Claimant’s lumbar spine and stated that although the imagining “indicated

mild bulging from the L4 through S1 vertebral levels, with minimal foraminal narrowing at the

L5/S1 vertebral joint, [there was] no canal stenosis or compressive pathology at any lumbar

level, and stable since 2013 (C5F/1-2).” (ECF No. 12, PageID #: 116). The ALJ explained that

“[w]hile this finding would be consistent with the claimant’s allegations of low back pain, the

record, when considered as a whole, is not supportive of the contention that the existence of this

impairment would be preclusive of all types of work.” (ECF No. 12, PageID #: 116).

Additionally, the ALJ discussed Claimant’s treatment modalities and clinical examinations

which “consistently, albeit not universally, reported either minimally adverse, or normal

findings[.]” (ECF No. 12, PageID #: 116).

In his reply brief, Claimant states that the ALJ improperly applied res judicata and that

the matter must be remanded because the ALJ’s decision relies, in part, on the opinions of two

state agency reviewing physicians who merely adopted the RFC contained in the 2013 ALJ

decision, which was decided by an ALJ who had not been properly appointed. (ECF No. 18 at 1-

2). Claimant states that “reliance on the prior ALJ’s findings…violated [his] constitutional

rights” pursuant to Lucia v. Securities & Exchange Commission, 138 S. Ct. 2044 (2018). (ECF

No. 18 at 1-2). “It is well-established that a party cannot raise new issues in a reply brief; he can

only respond to arguments raised for the first time in opposition.” In re: Firstenergy Corp. Sec.

Litig., 316 F.Supp.2d 581, 599 (6th Cir. 2004) (citing United States v. Campbell, 279 F.3d 392,

401 (6th Cir. 2002) (quoting United States v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001))).

Neither Claimant in his original brief, nor the Commissioner in the opposition, raised the issue as

to whether reliance on the prior ALJ’s findings was reversible error under Lucia. Therefore, this

argument is not properly before this Court and fails for procedural reasons. Id.

Moreover, the argument fails on further review. The Supreme Court in Lucia ruled that

the ALJs of the Securities and Exchange Commission had not been appointed in a

constitutionally legitimate manner and that remand for de novo review before a different ALJ

was required. In April 2021, the Supreme Court decided Carr v. Saul, 141 S. Ct. 1352 (2021),

holding that SSA claimants are not required to raise an Appointments Clause claim at the

administrative level in order to preserve it for review in court. However, Claimant never

challenged the appointment of the ALJ who issued the 2013 decision at any time during the 2011

claim’s litigation through its resolution in 2014. The time to appeal has ended, and the ALJ’s

2013 decision is now final and binding. See 42 U.S.C. § 405(g) (allowing for appeals of final

agency decisions within sixty days after the notice of the decision is mailed to a claimant); 20

C.F.R. §§ 404.987, 416.1487.

Claimant appears to argue that the current decision is tainted because state agency

reviewing physicians agreed with the previous decision. The Court agrees with the

Commissioner that “this amounts to an impermissible collateral attack on [Claimant’s] 2013 ALJ

decision, and Lucia does not support reaching back six-plus years into the past to upend a long-

final decision that is not, and never was, properly before the Court.” (ECF No. 19-1 at 4). In fact,

Lucia requires a “timely challenge” to the appointment in order to be given “a hearing before a

new judge.” Lucia, 138 S. Ct. at 2055 & n.5. Here, Claimant did not timely raise an

Appointments Clause challenge to the 2013 decision and the Court will not allow him to

collaterally do so now.2

2 Additionally, as discussed further in section V.C.3.d.i, contrary to Claimant’s assertion

that the state agency reviewing physicians merely adopted the prior RFC, the record

demonstrates that the opinions were obtained after reviewing the new evidence and that they

simply reached the same conclusion.

The record demonstrates that the ALJ considered the new evidence of Claimant’s

impairments and did not improperly apply res judicata. That the physical RFC matches that of

the 2013 ALJ decision is coincidental and, as discussed in detail below, the RFC is supported by

substantial evidence. Accordingly, this issue has no merit.

2. Listings

In his second issue, Jones asserts a number of errors, including that the ALJ erred in his

consideration of Listings 12.04 and 12.06 by not finding marked limitations in Jones’s abilities to

interact with others and to concentrate, persist, and maintain pace. (ECF No. 15 at 14). The

Commissioner does not address Claimant’s listing argument – perhaps because Claimant

addresses the listings in his argument about the RFC rather as a Step Three argument. (See ECF

No. 15 at 12-14). Despite the lack of clarity in Claimant’s argument, the Court has reviewed the

listings issue raised by Claimant.

At Step Three, “an ALJ must analyze the claimant’s impairments in relation to the Listed

Impairments and must give a reasoned explanation of his findings and conclusions in order to

facilitate meaningful review.” Christephore v. Comm’r of Soc. Sec., 11-13547, 2012

WL 2274328, at *6 (E.D. Mich. June 18, 2012) (citing Reynolds v. Comm’r of Soc. Sec., 424

F. App’x 411, 416 (6th Cir. 2011). The ALJ “need not discuss listings that the applicant clearly

does not meet.” Sheeks v. Comm’r of Soc. Sec., 544 F. App’x 639, 641 (6th Cir. 2013). “If,

however, the record ‘raises a substantial question as to whether [the claimant] could qualify as

disabled’ under a listing, the ALJ should discuss that listing. Id. (alteration in

original) (quoting Abbott, 905 F.2d at 925). “Failure to provide sufficient articulation of Step

Three is error.” Garza v. Comm’r of Soc. Sec., No. 15-11507, 2016 WL 703038, at *4 (E.D.

Mich. Jan. 22, 2016).

Listings 12.04 and 12.06 require either (1) an extreme limitation of one, or marked

limitation of two, of the paragraph B categories or (2) a serious and persistent impairment,

documented over a period of at least two years, with ongoing treatment and evidence of only

marginal adjustment as indicated by the paragraph C criteria. See, 20 C.F.R. Pt. 404, Subpt. P.

App. 1, §§ 12.00, 12.04, 12.08, and 12.11. Here, Jones does not challenge the ALJ’s findings

under paragraph C, only those under paragraph B. To satisfy paragraph B, Jones must also show

extreme limitation of one or marked limitation of two of the following: understand, remember, or

apply information; interact with others; concentrate, persist, or maintain pace; adapt or manage

oneself. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, Listing 12.04(B), 12.06(B) “A marked limitation

may arise where several activities or functions are impaired or even when only one is impaired,

as long as the degree of limitation is such as to interfere seriously with [the claimant’s] ability to

function independently, appropriately, effectively, and on a sustained basis.” Rabbers v.

Comm’r of Soc. Sec., 582 F.3d 647, 652-53 (6th Cir. 2009). A moderate limitation is defined as

having a fair ability to function independently, appropriately, effectively, and on a sustained

basis in an area. See 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00F.2.c.

The ALJ found that Jones did not meet Listings 12.04 and 12.06 because he had only a

moderate limitation in understanding, remembering, or applying information; moderate

limitation in concentrating, persisting, or maintaining pace; mild limitation in managing himself;

and moderate limitation in interacting with others. (ECF. No. 12, PageID #: 114). Jones argues

that the ALJ erred in his “B criteria” evaluation of Listings 12.04 and 12.06 by not finding

marked limitations in his abilities to interact with others and to concentrate, persist, and maintain

pace. (ECF No. 15 at 14).

Interact with others (paragraph B2)

The ALJ found that Jones had a moderate limitation in his ability to interact with

others. “This area of mental functioning refers to the abilities to relate to and work with

supervisors, co-workers, and the public.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, Listing

12.00(E)(2). “Examples include: cooperating with others; asking for help when needed;

handling conflicts with others; stating own point of view; initiating or sustaining conversation;

understanding and responding to social cues (physical, verbal, emotional); responding to

requests, suggestions, criticism, correction, and challenges; and keeping social interactions free

of excessive irritability, sensitivity, argumentativeness, or suspiciousness.” Id.

Without further explanation, Jones argues that his testimony and the findings of Dr. Bard

support marked limitation in this area. (ECF No. 15 at 14 (“Based on the evidence in this matter,

Jones had a marked limitation in interacting with others (testimony and findings of Dr. Bard).”).

Claimant fails to direct the Court to what testimony or what findings by Dr. Bard support his

argument. “It is not sufficient for a party to mention a possible argument in the most skeletal

way, leaving the court to ... put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995-996

(6th Cir. 1997). It is well established that “issues which are ‘adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived.’” Kennedy v.

Commissioner, 87 Fed. Appx. 464, 2003 WL 23140056, at *1 (6th Cir. 2003) (citing United

States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996)) (rejecting perfunctory argument)). The Court

deems this undeveloped argument forfeited.

Concentrate, persist, or maintain pace (paragraph B3)

The ALJ found that Jones had moderate limitations in concentrating, persisting, or

maintaining pace. “This area of mental functioning refers to the abilities to focus attention on

work activities and stay on task at a sustained rate.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1,

Listing 12.00(E)(3). “Examples include: initiating and performing a task that you understand and

know how to do; working at an appropriate and consistent pace; completing tasks in a timely

manner; ignoring or avoiding distractions while working; changing activities or work settings

without being disruptive; working close to or with others without interrupting or distracting

them; sustaining an ordinary routine and regular attendance at work; and working a full day

without needing more than the allotted number or length of rest periods during the day.” Id.

Jones argues that Dr. Bard’s indication that he would need redirecting supports a finding

that he suffered greater than a moderate limitation in his ability to concentrate, persist, or

maintain pace. (ECF No. 15 at 14). Substantial evidence supports the ALJ’s conclusion.

The Claimant reported an inability to complete what he starts and an attention span of ten

minutes. The consultative examiner, Dr. Bard noted, on the second of two visits, that Jones’s

speech was “relevant, coherent and free of pressured delivery, misarticulation or dysfluency. He

evidenced normal voice quality and volume. He was able to carry on conversation and initiate

ample dialogue. The claimant was articulate and slightly excessively wordy and occasionally

needed redirection to complete the interview in a timely fashion. Eye contact was satisfactory.”

(ECF No. 12, PageID #: 498). Claimant argues that Dr. Bard’s notation that he needed

occasional redirection supports marked limitation in his ability to contrate, persist, and maintain

pace. However, when describing Jones’s ability and limitations in sustaining concentration and

persistence in work related activities, Dr. Bard stated “claimant performed withing the Average

range on the mental status examination. His score today was identical to the same score obtained

in November 2017. He exhibited no unusual problems in regard to concentration or persistence.

He did not require questions to be repeated or simplified. From a mental health standpoint he

presents with no limitations…” (ECF No. 12, PageID #: 500).

Moreover, the evidence does not support Jones’s testimony that he has an inability to

complete what he starts and has an attention span of ten minutes. The ALJ correctly observed

that Claimant is a high school graduate, which he achieved without receipt of special education

services. (ECF No. 12, PageID #: 356). Further, as the ALJ observed, the records do not indicate

difficulties with Claimant’s understanding or coherency. Both mini-state mental health status

examinations performed by Dr. Bard resulted in Claimant registering scores of thirty out of

thirty. (ECF No. 12, PageID #: 478, 498). Dr. Bard noted that Claimant’s performance was

average. Specifically,

[Claimant] was able to count backward by serial 7’s after five

sequential steps. He was able to recall three words after a five

minute delay, follow a three step command, write a basic sentence,

copy a geometric design and was able to recall his social security

number forward and backward correctly. He was able to spell the

word world backward and recall one major news event. He was

unable to describe a proverb. Mr. Jones was able to recall five

digits forward and four digits backward indicating slightly below

average performance in working memory. Based on the claimant’s

overall presentation and language skills, intellectual ability was

estimated to be with the Average range (IQ estimate=98).

(ECF No. 12, PageID #: 478). Evidence shows no cognitive impairment (ECF No. 12, PageID #:

424), and a coherent (ECF No. 12, PageID #: 478) and logical (ECF No. 12, PageID #: 545)

thought process.

Jones has failed to demonstrate less than a fair ability to function independently,

appropriately, effectively, and on a sustained basis in the area of concentrating, persisting, or

maintaining pace. Jones has also failed to demonstrate how Dr. Bard’s notation that he required

occasional redirection demonstrates more than a moderate limitation, especially given Dr. Bard’s

opinion that he has no unusual problems in regard to concentration or persistence and presents

with no mental health limitations. Accordingly, the ALJ’s determination that Jones suffered

moderate limitation in this area is supported by substantial evidence.

3. The RFC is supported by substantial evidence.

Jones claims that the ALJ erred by failing to consider the effect of the combination of his

severe impairments on his ability to engage in substantial gainful activity. (ECF No. 15 at 11).

Jones asserts that “it is unclear from the record how the ALJ determined that Jones could

perform work at the light level of exertion on a sustained basis.” (ECF No. 15 at 11). This issue

contains several sub-issues: 1) whether the ALJ’s finding that Claimant could ambulate

effectively was supported by substantial evidence (ECF No. 15 at 13); 2) whether the ALJ erred

in finding that Jones would need to alternate positions every hour, rather than every 30 minutes

(ECF No. 15 at 13); 3) whether the ALJ properly considered the combination of Claimant’s

impairments (ECF No. 15 at 15); and 4) whether ALJ properly explained the persuasiveness of

the medical opinions (ECF No. 15 at 14).

a. The ALJ’s finding that Claimant can ambulate effectively is supported by

substantial evidence.

Light work “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.” 20 C.F.R. § 404.1567. “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.” Id. The ALJ found that Claimant was able to ambulate

effectively. Claimant argues that this finding was not supported by substantial evidence, and,

thus, the ALJ’s finding that he can perform work at the light level of exertion is not supported by

substantial evidence. (ECF No. 15 at 13).

According to section 1.00B2b, to ambulate effectively, individuals must:

be capable of sustaining a reasonable walking pace over a

sufficient distance to be able to carry out activities of daily living.

They must have the ability to travel without companion assistance

to and from a place of employment or school. Therefore, examples

of ineffective ambulation include, but are not limited to, the

inability to walk without the use of a walker, two crutches or two

canes, the inability to walk a block at a reasonable pace on rough

or uneven surfaces, the inability to use standard public

transportation, the inability to carry out routine ambulatory

activities, such as shopping and banking, and the inability to climb

a few steps at a reasonable pace with the use of a single hand rail.

The ability to walk independently about one’s home without the

use of assistive devices does not, in and of itself, constitute

effective ambulation.

20 C.F.R. Pt. 404 Subpt. P App. 1 § 1.00B2b. Substantial evidence supports the ALJ’s finding

that Claimant could ambulate effectively. First, there is no evidence that Claimant used an

ambulatory aid, nor does he argue that he requires one. Second, the medical evidence indicates

that he is able to walk normally. (See ECF No. 12, PageID #: 472; 489 (“The claimant was able

to walk without a limp. The claimant had normal heel to toe[.]”)). Third, Claimant’s own

statements support the ALJ’s finding. Contrary to his hearing testimony, Claimant reported in

medical records that he was able to manage household chores, grocery shop, and walk to his

mother’s house a mile from his own. (ECF No. 12, PageID #: 477; 497). Claimant also walked

home from his 2017 consultative examination (ECF No. 12, PageID #: 478), which is a distance

of 1.6 miles.3 Although Claimant recites symptoms of low back pain (ECF No. 15 at 12), he

provides no evidence overlooked by the ALJ that indicates he was unable to sustain a reasonable

walking pace over a sufficient distance in order to perform his daily activities. In fact, the

evidence supports the opposite.

Accordingly, the ALJ’s finding that Claimant could ambulate effectively is supported by

substantial evidence.

3 Google maps calculates a distance of 1.6 miles from the clinic at 1826 S Main Street in

Akron, Ohio to Claimant’s house at 1049 Yale Street in Akron, Ohio.

b. The ALJ’s limitation that Jones would need to alternate positions every

sixty minutes was supported by substantial evidence.

The ALJ further limited Claimant’s RFC by finding that he would need to alternate

positions every sixty minutes. (ECF No. 12, PageID #: 115). Claimant argues that this is an error

and that the record supports that Claimant would need to alternate positions every thirty minutes.

(ECF No. 15 at 13). However, the only evidence that Claimant needed to change positions more

frequently than found by the ALJ came from the Claimant, himself: Claimant testified that he

could only stand for ten minutes before he would need to sit down (ECF No. 12, PageID #: 149);

and at the hearing Claimant requested to stand after a period of sitting (ECF No. 12, PageID #:

138). Although the medical evidence indicates that Claimant had a spine disorder, the ALJ

accurately observed that there is “no indication of compressive pathology[.]” (ECF No. 12,

PageID #: 116; see also ECF No. 12, PageID #: 560 (October 17, 2017 MRI revealed mild disc

bulging without significant central stenosis, no “significant issues [r]esulting in the need for

narcotics or back surgery”). Clinical examinations reported preserved strength, neurological

function and gait. (ECF No. 12, PageID #: 472; 594). Claimant routinely walked a mile to his

mother’s house in reasonable time. (ECF No. 12, PageID #: 477; 497). Finally, the opinion

evidence considered by the ALJ supports the ALJ’s finding. State agency reviewing physicians,

Dr. Hughes and Dr. Sutherland, both found that Claimant could perform light work, but that he

should be allowed to alternate positions once each hour. (ECF No. 12, PageID #: 189, 225). Dr.

Vogelgesang, who performed a consultative physical examination of Claimant on May 9, 2018,

opined that Claimant could perform light lifting of up to 20 pounds, but may have to avoid

extensive bending or twisting. (ECF No. 12, PageID #: 489). Dr. Vogelgesang did not include

any additional limitations. Claimant does not cite to any medical evidence or opinion supporting

a more significant limitation than already included in the RFC.

Accordingly, substantial evidence supports the RFC’s limitation that Claimant be allowed

to shift positions every sixty minutes.

c. The ALJ properly considered the combined effect of Claimant’s

impairments when crafting the RFC.

Jones argues that the ALJ failed to consider the severity of his impairments in

combination. (ECF No. 15 at 15). However, the ALJ specifically recognized his responsibility to

determine whether Claimant had a severe impairment or combination of impairments, and

whether Claimant had an impairment or combination of impairments that were equivalent to a

listed impairment. (ECF No. 12, PageID #: 111-112). The ALJ explained that he “must

determine whether the claimant’s impairment or combination of impairments is of a severity to

meet or medically equal the criteria of an impairment listed 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)” and

that “[i]f the claimant’s impairment or combination of impairments is of a severity to meet or

medically equal the criteria of a listing and meets the duration requirement” the claimant is

disabled. (ECF No. 12, PageID #: 112). The ALJ then found that “the claimant does not have an

impairment or combination of impairments that meet or medically equal a listed impairment”

and that “[t]he severity of the claimant’s mental impairments, considered singly and in

combination, do not meet or medically equal the criteria of listings 12.04 and 12.06.” (ECF No.

12, PageID #: 113, 114). An ALJ’s specific recognition of his duties to review a claimant’s

impairments in combination is evidence that the ALJ did, in fact, do so. See Malone v. Comm’r

of Soc. Sec., 507 F. App’x 470, 472 (6th Cir. 2012).

Claimant’s argument is also unpersuasive because, as detailed herein, in determining the

RFC the ALJ “considered all symptoms and the extent to which these symptoms can reasonably

be accepted as consistent with the objective medical evidence and other evidence, based on the

requirements of 20 CFR 404.1529 and 416.929 and SSR 16-3p.” (ECF No. 12, PageID #: 115)).

See Malone, 507 F. App’x at 472 (citing Loy v. Sec’y of Health & Human Servs., 901 F.2d 1306,

1310 (6th Cir. 1990); Gooch v. Sec’y of Health & Human Servs., 833 F.2d 589, 591–92 (6th Cir.

1987)).

d. The ALJ properly explained the persuasiveness of the medical opinions.

Jones argues that the ALJ erred in his persuasiveness findings of the medical opinions.

Specifically, that the ALJ erred by finding persuasive the opinions of state agency reviewing

physicians Hughes and Sutherland because they had not independently reviewed the medical

evidence but, rather, relied on the findings of the 2013 ALJ decision. Additionally, Claimant

argues that the ALJ erred by failing to adopt the mental restrictions of the state agency reviewing

psychologists and the consultative examiner, Dr. Bard. (ECF No. 15 at 16-17).

At Step Four, the ALJ must determine a claimant’s RFC by considering all relevant

medical and other evidence. 20 C.F.R. §§ 404.1520(e).4 On January 18, 2017, the Social Security

Administration amended the rules for evaluating medical opinions for claims filed after March

27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg.

5844 (Jan. 18, 2017). The new regulations provide that the Social Security Administration “will

not defer or give any specific evidentiary weight, including controlling weight, to any medical

opinion(s) or prior administrative medical finding(s).” C.F.R. § 404.1520c(a). Nevertheless, an

ALJ must “articulate how [she] considered the medical opinions and prior administrative medical

findings” in adjudicating a claim. 20 C.F.R. § 404.1520c(a). In doing so, the ALJ is required to

explain how she considered the supportability and consistency of a source’s medical opinion(s),

4 The “treating source rule,” which generally required the ALJ to defer to the opinions of

treating physicians, was abrogated by 20 C.F.R. § 404.1520c for claims filed on or after March

27, 2017, such as here.

but generally is not required to discuss other factors. 20 C.F.R. § 404.1520c(b)(2). Medical

source opinions are evaluated using the factors listed in 20 C.F.R. § 404.1520c(c). The factors

include: supportability; consistency; the source’s relationship with the claimant; the source’s

specialized area of practice, if any; and “other factors that tend to support or contradict a medical

opinion.” 20 C.F.R. §§ 404.1520c(c), 404.1520c(b)(2) (“The factors of supportability [ ] and

consistency [ ] are the most important factors we consider when we determine how persuasive

we find a medical source’s medical opinions ....”).

i. State Agency Reviewing Physicians

State agency reviewing physicians Dr. Hughes and Dr. Sutherland opined that Claimant

had the ability to perform light work with additional limitations, including that he can never

climb ladders, ropes, or scaffolds, but can occasionally climb ramps and stairs, occasionally

stoop and crouch, and be allowed to alternate between sitting and standing every hour. (ECF No.

12, PageID #: 189, 225). Both doctors stated that “the RFC given is an adoption of the ALJ

decision dated 2-11-13. The RFC is being adopted under AR 98-4 (Drummond ruling).” (ECF

No. 12, PageID #: 189, 225).

Claimant argues that Drs. Hughes and Sutherland did not independently review the

medical evidence, thus the ALJ erred by finding them persuasive. The Commissioner argues that

Claimant’s argument is factually incorrect. This Court agrees with the Commissioner.

Here, each disability determination lists the “Evidence of Record” reviewed by the

agency for the period of disability beginning February 12, 2013 – the day after the 2013 ALJ

decision. These records reviewed include the 2017 opinion of Dr. Bard; medical records from

Axess Pointe Community Health Center, Portage Path Behavioral Health, and Dr. Steurer, Jr.

(see ECF No. 12, PageID #: 181-182, 215-217); the 2018 opinion from Dr. Bard, the consultative

examination report from Dr. Vogelgesand, records from Akron General Hospital, and additional

records from Portage Path Behavioral Health (see ECF No. 12, PageID #: 213-214).

Additionally, the Finding of Fact and Analysis of Evidence section for both doctors demonstrate

that both doctors reviewed evidence listed. (See ECF No. 12, PageID #: 184, 220-221).

Accordingly, Claimant’s argument is factually incorrect.

Claimant seems to argue that because Dr. Hughes and Dr. Sutherland adopted the RFC

from the ALJ decision in February 2013 and referenced the same, the ALJ’s finding of their

opinions being “persuasive” is reversible error. However, not only did the ALJ explain that their

opinions were consistent with and supported by the overall evidence in the record, but he also

specifically addressed the medical evidence:

The record shows a claimant with a spine disorder, but no

indication of compressive pathology (C15F/1-2). Clinical

examinations included in the record have consistently reported

preserved strength, neurological function and gait (C6F/6),

(C18F/4), and the claimant has retained an array of activities of

daily living of sufficient breadth to encompass the maintenance of

an independent household (C4E/1), and routinely walking the mile

to his mother’s house in ten minutes (C7F/3), (C10F/3). Restriction

to light work is warranted on this evidence, as are the postural

limitations, with the most limitations imposed on those maneuvers

that most bring the back into play.

(ECF No. 15, PageID #: 115). Moreover, the ALJ’s decision discussed the supportability of the

opinions: “Each of these doctors had the opportunity to review the evidence of record, to which

each cited liberally in support of their conclusions and each is well versed in the terminology and

analytical framework employed in the disposition of these claims. and consistency with the

remainder of the record.” (ECF No. 15, PageID #: 115). The fact the physical RFC from 2013 is

identical to the RFC rendered here is not error where Claimant did not provide evidence that his

physical condition had demonstrably changed or worsened since the 2013 decision. Amburgey,

751 App’x at 861-862.

Accordingly, the ALJ’s finding that the state agency reviewing physicians’ opinions were

persuasive is supported by substantial evidence.

ii. State Agency Reviewing Psychologists

State agency reviewing psychologist Dr. Goldsmith opined that Claimant did not have

any limitation is his understanding and memory, sustained concentration and persistence, or