Farley v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LISA L. FARLEY,

Plaintiff,

Case No. 2:18-cv-1104

v. JUDGE GEORGE C. SMITH

Chief Magistrate Judge Elizabeth P. Deavers

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff, Lisa L. Farley, brings this action under 42 U.S.C. § 405(g) for review of a final

decision of the Commissioner of Social Security (“Commissioner”) denying her application for

disability insurance benefits and supplemental security income. This matter is before the United

States Magistrate Judge for a Report and Recommendation on Plaintiff’s Statement of Errors

(ECF No. 10), the Commissioner’s Memorandum in Opposition (ECF No. 13), Plaintiff’s Reply

(ECF No. 14), and the administrative record (ECF No. 7). For the reasons that follow, it is

RECOMMENDED that the decision of the Commissioner be REVERSED and that this action

be REMANDED under Sentence Four of § 405(g).

I. BACKGROUND

On April 17, 2015, Plaintiff protectively filed applications for both supplemental security

income and disability insurance benefits, alleging that she had been disabled since August 1,

2009. (R. at 439–51.) Plaintiff later amended her onset date to March 17, 2015. (R. at 579.)

Plaintiff’s applications were denied initially and upon reconsideration. (R. at 379–85, 388–92.)

Plaintiff sought a de novo hearing before an administrative law judge. (R. at 394–95.)

Administrative Law Judge Renita Bevins (“ALJ”) held a video hearing on November 16, 2017,

at which Plaintiff, who was represented by counsel, appeared and testified. (R. at 182–225.) On

March 21, 2018, the ALJ issued a decision finding that Plaintiff was not disabled within the

meaning of the Social Security Act. (R. at 152–72.) On July 26, 2018, the Appeals Council

denied Plaintiff’s request for review and adopted the ALJ’s decision as the Commissioner’s final

decision. (R. at 2–8.) Plaintiff then timely commenced the instant action.

II. RELEVANT MEDICAL RECORDS

A. Michael Sayegh, M.D.

Michael Sayegh, M.D., Plaintiff’s treating pain-management specialist, first examined

Plaintiff on November 2, 2015, and saw her every two months for pain management. (R. at

1735.) On September 21, 2017, Dr. Sayegh completed a medical source statement. (R. at 1735–

38.) Dr. Sayegh opined that Plaintiff could walk less than one city block without rest or severe

pain; that she could sit or stand for thirty (30) minutes at one time; and that she could sit and

stand/walk for about two hours in an eight-hour day. (R. at 1736.) Dr. Sayegh further opined

that Plaintiff needed a job that permits shifting positions at will from sitting, standing, or walking

and needed to include ten-minute periods of walking every fifteen minutes in an eight-hour day.

(Id.) Dr. Sayegh also opined that Plaintiff needed to take unscheduled breaks during a work day,

possibly every thirty minutes for possibly fifteen minutes of rest before returning to work. (Id.)

According to Dr. Sayegh, Plaintiff’s muscle weakness and pain/paresthesias, numbness caused

the need for breaks. (Id.) Dr. Sayegh opined that Plaintiff must use a cane or other hand-held

assistive device while engaging in occasional standing/walking because of her imbalance, pain,

and weakness. (R. at 1737.) Dr. Sayegh also opined that Plaintiff could rarely lift less than ten

pounds and never lift more than ten pounds. (Id.) Plaintiff could never twist, stoop (bend),

crouch/squat, or climb stairs or ladders and had significant limitations with reaching, handling, or

fingering. (Id.) Dr. Sayegh opined that Plaintiff would likely be “off task” 25% or more during

a typical work day. (R. at 1738.) He also opined that Plaintiff was capable of low stress work

but that her impairments were likely to produce “good days” and “bad days” more than four days

per month. (Id.) According to Dr. Sayegh, Plaintiff’s impairments were reasonably consistent

with the symptoms and functional limitations in his evaluation. (Id.) Finally, Dr. Sayegh opined

that Plaintiff should also avoid extreme temperatures, humidity, noise, and fumes/gasses. (Id.)

IV. ADMINISTRATIVE DECISION

On March 21, 2018 the ALJ issued her decision. (R. at 152–72.) The ALJ found that

Plaintiff met the insured status requirements of the Social Security Act through June 30, 2015.

(R. at 155.) At step one of the sequential evaluation process,1 the ALJ found that Plaintiff had

1 Social Security Regulations require ALJs to resolve a disability claim through a five-step

sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a dispositive

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th

Cir. 2007), if fully considered, the sequential review considers and answers five questions:

1. Is the claimant engaged in substantial gainful activity?

2. Does the claimant suffer from one or more severe impairments?

3. Do the claimant’s severe impairments, alone or in combination, meet or

equal the criteria of an impairment set forth in the Commissioner’s Listing of

Impairments, 20 C.F.R. Subpart P, Appendix 1?

4. Considering the claimant’s residual functional capacity, can the claimant

perform his or her past relevant work?

5. Considering the claimant’s age, education, past work experience, and residual

functional capacity, can the claimant perform other work available in the national

economy?

See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).

not engaged in substantially gainful activity since her alleged onset date of March 17, 2015. (R.

at R. at 155.)

At step two, the ALJ concluded that Plaintiff had the following severe impairments:

Diabetes mellitus; peripheral neuropathy; spine disorder; osteoporosis; restless leg syndrome;

chronic obstructive pulmonary disease (COPD); fibromyalgia; mild light carpal tunnel

syndrome; obesity; affective disorder; anxiety disorder; and attention deficit disorder (20 CFR

404.1520(c) and 416.920(c)). (Id.)

At step three of the sequential process, the ALJ concluded that that Plaintiff did not have

an impairment or combination of impairments that met or medically equaled one of the listed

impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) At step four, the ALJ

assessed Plaintiff’s RFC as follows:

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 404.1567(b) and 416.967(b) except for the following restrictions: She can lift

and carry up to 20 pounds occasionally and 10 pounds frequently. She can stand

and/or walk for 6 hours per 8-hour day for 20 minutes at a time and sit 6 hours per

8-hour day for 30 minutes at a time but then would be expected to alternate from

sitting to stand/stretch/move at the workstation for 1-2 minutes to ease discomfort

before resuming a seated position with normal breaks. She can climb ramps and

stairs occasionally but can never climb ladders, ropes and scaffolds. She can

occasionally balance and stoop. She never kneel. She occasionally crouch. She can

never crawl. She requires the use of a cane to go to and from the workstation. She

can perform frequent handling and fingering bilaterally. She must avoid

concentrated exposure to pulmonary irritants such as fumes, odors and dust. She

must avoid all exposure to hazards such as dangerous heavy moving machinery and

unprotected heights. She can understand, remember and carry out simple and low-

level complex instructions with no requirement for fast-paced production. She can

maintain concentration and attention for 2-hour intervals in an 8-hour workday. She

can sustain an ordinary routine without special supervision. She can engage in no

face-to-face interaction with the public. She can engage in superficial interaction

with coworkers and supervisors such that any interpersonal interaction is incidental

to the work being performed. She can maintain awareness of normal hazards and

take appropriate precautions. She is able to travel independently. Due to medical

conditions and symptoms, she would be off task 8 percent of the work period.

(R. at 158.) In reaching this determination, the ALJ accorded “some weight” to Dr. Sayegh’s

opinion, stating that although he is a pain-medication specialist, this expertise does not outweigh

the countervailing inconsistencies in the record evidence. (R. at 166–67.) Nevertheless, the ALJ

accepted some limitations identified by Dr. Sayegh that the ALJ found “supportable.” (R. at

166.)

Relying on the VE’s testimony, the ALJ determined that Plaintiff was capable of

performing past relevant work as a telemarketer and that she could perform other jobs existing in

significant numbers in the national economy. (R. at 169 –71.) The ALJ therefore concluded that

Plaintiff was not disabled under the Social Security Act. (R. at 171.)

V. STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §

405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).

Although the substantial evidence standard is deferential, it is not trivial. The Court must

“‘take into account whatever in the record fairly detracts from [the] weight’” of the

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is

substantial evidence in the record that would have supported an opposite conclusion.’” Blakley

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d

270, 273 (6th Cir. 1997)). Finally, even if the ALJ’s decision meets the substantial evidence

standard, “‘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.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478

F.3d 742, 746 (6th Cir. 2007)).

VI. ANALYSIS

Plaintiff advances one contention of error. Plaintiff asserts that the ALJ failed to provide

good reasons for according less than controlling weight to Dr. Sayegh’s opinions. Plaintiff also

contends that despite the ALJ’s favorable assessment of portions of Dr. Sayegh’s opinions, the

RFC does not accurately reflect these opinions.

The ALJ must consider all medical opinions that he or she receives in evaluating a

claimant’s case. 20 C.F.R. § 416.927(c). The applicable regulations define medical opinions as

“statements from physicians and psychologists or other acceptable medical sources that reflect

judgments about the nature and severity of your impairment(s), including your symptoms,

diagnosis and prognosis, what you can still do despite impairment(s), and your physical or

mental restrictions.” 20 C.F.R. § 416.927(a)(2).

The ALJ generally gives deference to the opinions of a treating source “since these

sources are likely to be the medical professionals most able to provide a detailed, longitudinal

picture of [a patient’s] medical impairment(s) and may bring a unique perspective to the medical

evidence that cannot be obtained from the objective medical filings alone . . .” 20 C.F.R. §

416.927(c)(2); Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013); Blakley v.

Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009).2 If the treating physician’s opinion is

“well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in [the claimant’s] case record, [the ALJ] will

give it controlling weight.” 20 C.F.R. § 404.1527(c)(2).

If the ALJ does not afford controlling weight to a treating physician’s opinion, the ALJ

must meet certain procedural requirements. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544

(6th Cir. 2004). Specifically, if an ALJ does not give a treating source’s opinion controlling

weight:

[A]n ALJ must apply certain factors—namely, the length of the treatment

relationship and the frequency of examination, the nature and extent of the

treatment relationship, supportability of the opinion, consistency of the opinion

with the record as a whole, and the specialization of the treating source—in

determining what weight to give the opinion.

Id. Furthermore, an ALJ must “always give good reasons in [the ALJ’s] notice of determination

or decision for the weight [the ALJ] give[s] your treating source’s opinion.” 20 C.F.R. §

416.927(c)(2). Accordingly, the ALJ’s reasoning “must be sufficiently specific to make clear to

any subsequent reviewers the weight the adjudicator gave to the treating source’s medical

opinion and the reasons for that weight.” Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 550

(6th Cir. 2010) (internal quotation omitted). The United States Court of Appeals for the Sixth

Circuit has stressed the importance of the good-reason requirement:

“The requirement of reason-giving exists, in part, to let claimants understand the

disposition of their cases,” particularly in situations where a claimant knows that

2 “Revisions to regulations regarding the evaluation of medical evidence went into effect on

March 27, 2017, and purport to apply to the evaluation of opinion evidence for claims filed

before March 27, 2017.” Smith v. Comm’r of Soc. Sec., No. 3:18CV622, 2019 WL 764792, at *5

n.2. (N.D. Ohio Feb. 21, 2019) (citing 82 Fed. Reg. 5844-5884 (Jan. 18, 2017)). Plaintiff’s claim

was filed before March 27, 2017, before the new regulations took effect.

his physician has deemed him disabled and therefore “might be especially

bewildered when told by an administrative bureaucracy that she is not, unless some

reason for the agency’s decision is supplied.” Snell v. Apfel, 177 F.3d 128, 134 (2d

Cir. 1999). The requirement also ensures that the ALJ applies the treating physician

rule and permits meaningful review of the ALJ’s application of the rule. See

Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004).

Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly important

when the treating physician has diagnosed the claimant as disabled.” Germany-Johnson v.

Comm’r of Soc. Sec., 313 Fed. App’x 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242).

There is no requirement, however, that the ALJ “expressly” consider each of the Wilson factors

within the written decision. See Tilley v. Comm’r of Soc. Sec., 394 F. App’x 216, 222 (6th Cir.

2010) (indicating that, under Blakley and the good reason rule, an ALJ is not required to

explicitly address all of the six factors within 20 C.F.R. § 404.1527(c)(2) for weighing medical

opinion evidence within the written decision).

Finally, the Commissioner reserves the power to decide certain issues, such as a

claimant’s residual functional capacity. 20 C.F.R. § 404.1527(d). Although the ALJ will

consider opinions of treating physicians “on the nature and severity of your impairment(s),”

opinions on issues reserved to the Commissioner are generally not entitled to special

significance. 20 C.F.R. § 404.1527(d); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007).

Here, the ALJ assigned “some weight” to Dr. Sayegh’s opinion, rejecting some

limitations and accepting other limitations, reasoning as follows:

The undersigned gives some weight to the assessment of Michael Sayegh, M.D.,

the claimant’s treating pain-management specialist (C56F). He espoused stringent

exertional limitations for the claimant, asserting that she could walk less than one

block without severe pain and sit or stand/walk for only two total hours during an

eight-hour workday. He indicated that the claimant would need to take a break

every 30 minutes (C56F/2). According to Dr. Sayegh, the claimant could only

rarely lift less than ten pounds. He also completely prohibited the claimant from

performing an array of postural activities. He indicated that the claimant could

perform extremely limited manipulative and reaching activities. He noted that the

claimant needed to use a cane to ambulate (C56F/3). He recommended that the

claimant avoid extreme temperatures, humidity, noise, fumes and gases (C56F/4).

Finally, he asserted that the claimant’s impairments would render her off task more

than four days of work per month (C56F/4).

If a treating source’s medical opinion is well-supported by medically acceptable

clinical and diagnostic techniques and is not inconsistent with the other substantial

evidence, it should receive controlling weight (20 CFR 404.1527 and 416.927).

However, the medical evidence does not sufficiently support Dr. Sayegh’s findings

to warrant affording them controlling weight.

Dr. Sayegh’s indication that the claimant can walk less than one city block conflicts

with her testimony regarding her trip to Virginia Beach and walking on the

Boardwalk as well as her admission at the hearing that she could walk for 20

minutes at a time (Testimony). Dr. Sayegh’s lifting restrictions conflict with those

found earlier by a physical therapist who performed a functional capacity

evaluation and even those espoused by the claimant’s neurologist just months after

she underwent multiple spine surgeries (C30F/6 and C37F/15). His determination

that the claimant can never twist, stoop, crouch or climb stairs or ladders conflicts

with the claimant’s daily activities. Specifically, the claimant acknowledged

vacuuming, hand washing dishes, shop, going out to dinner and attending

appointments (Testimony). Many of these activities would require some twisting,

stooping, crouching and stair climbing. Nor does the record support Dr. Sayegh’s

conclusions regarding the claimant’s manipulative and reaching abilities. At the

hearing, the claimant gesticulated, raising her hands just above her ears to

demonstrate how high she had to lift in a previous job, which suggests that she

could perform overhead reaching. She prepares simple meals, vacuums, hand wash

dishes, dines out and shops (Testimony). Claimant reported to treatment providers

that she has not really had to stop any lifestyle activities (C37F/5). Furthermore,

recent examination findings, including those of Dr. Sayegh, are incommensurate

with many of the restrictions in this assessment (see, e.g., C47F/2; C52F/5; C62F/1;

and C64F). Likewise, results of an EMG portray the claimant’s carpal tunnel as

only mild in intensity (C34F/43). The claimant also testified to using her cellular

phone, which obviously requires fine and gross manipulation (Testimony). Finally,

the claimant’s postoperative improvement does not support Dr. Sayegh opinion that

the claimant would be absent more than 4 days a month and would be off task much

of the time. To the contrary, the claimant reported decreased pain and improved

quality of life later in the record, after she underwent spinal surgery (see, e.g.,

C30F/2 and C60F/2).

However, the undersigned contemplated supportable portions of Dr. Sayegh’s

assessment in formulating the residual functional capacity. He opined the claimant

is able to sit 30 minutes at a time and stand 30 minutes at a time, which comports

with the limitations in the residual functional capacity. The residual functional

capacity allows for changing position and moving around during an 8-hour

workday to ease discomfort related to claimant’s impairments. Dr. Sayegh

indicated that the claimant require unscheduled breaks, which the undersigned

accommodated by recognizing that the claimant would spend 8 percent of the

workday off task. Consistent with Dr. Sayegh’s opinion, the residual functional

capacity contemplates, the claimant using a cane to ambulate to and from the

workstation.

If a treating source’s medical opinion does not warrant controlling weight, it must

be weighed using the following factors: Length of the treatment relationship and

the frequency of examination; nature and extent of the treatment relationship;

supportability of the opinion; consistency of the opinion with the record as a whole;

whether the opinion concerns medical issues related to the treating source’s area of

specialization; any other factors which tend to support or contradict the opinion (20

CFR 404.1527 and 416.927).

After considering the aforementioned criteria, the undersigned gives Dr. Sayegh’s

assessment some weight. Dr. Sayegh first treated the claimant in November 2016

and has subsequently saw the claimant several times a year since that time (C31F,

C39F, C43F, C47F and C55F). Accordingly, Dr. Sayegh’s assessment indicates

that he sees the claimant every two months for complaints associated with her spinal

problems (C56F/1). As the claimant’s pain-management specialist, Dr. Sayegh

prescribed the claimant narcotics and administered injections to her (C31F/2, 3;

C39F/1, 3; C43F/1; C47F/2, 4, 6, 9; and C55F/1, 3). As discussed above, several

aspects of the record conflict with the limitations espoused by Dr. Sayegh’s

findings. Finally, although Dr. Sayegh’s expertise as a pain-medication specialist

lends some weight to his assessment, it does not outweigh the countervailing

inconsistencies discussed above.

(R. at 165–67.)

As previously discussed, Dr. Sayegh opined that Plaintiff needed a job that permitted

shifting positions at will from sitting, standing, or walking and needed to include ten-minute

periods of walking every fifteen minutes in an eight-hour day and that Plaintiff needed to take

unscheduled breaks during a work day, possibly every thirty minutes for possibly fifteen minutes

of rest before returning to work. (R. at 1736.) Plaintiff specifically notes, inter alia, that in the

section of the ALJ’s discussion finding portions of Dr. Sayegh’s opinions “supportable,” the ALJ

states that Dr. Sayegh indicated that the Plaintiff requires unscheduled breaks and that the RFC

“allows for changing position and moving around during an 8-hour workday to ease discomfort

related to claimant’s impairments. . . . which the undersigned accommodated by recognizing that

the claimant would spend 8 percent of the workday off task.” (R. at 166; ECF No. 10 at 12–13.)

Plaintiff contends that although the ALJ found Dr. Sayegh’s limitations involving unscheduled

breaks supported by the record, the RFC was not consistent with these limitations. (ECF No. 10

at 12–13.) Plaintiff specifically argues that “[b]eing off-task 8% of the workday is far less time

off-task than opined by Dr. Sayegh. This discrepancy is left completely unresolved. The ALJ

does not explain how an 8% off-task limitation equates to the need for unscheduled 15-minute

breaks every 30 minutes.” (Id. at 13.)

Plaintiff’s argument is well taken. Nowhere in her opinion does the ALJ explain this

eight percent figure or explain why, after finding Dr. Sayegh’s limitations as to unscheduled

breaks supported by the record, she failed to include such a limitation in the RFC. The ALJ

included the eight percent figure in her hypothetical question to the VE at the hearing to which

the VE denied that being off task for eight percent of the time would change the VE’s testimony

of the identified jobs the hypothetical person could perform. (R. at 219.) However, the VE

testified that being off task fifteen percent of the time in an eight-hour work day would be work

preclusive. (R. at 219–20.) Based on this record, “[t]he 8% figure appears to be nothing more

than an arbitrary number slightly below the ‘unemployability’ threshold identified by the VE.”

Treichel v. Colvin, No. 16-cv-10331, 2016 WL 4036863, at *10 (E.D. Mich. July 28, 2016)

(stating further that “[o]n remand, the ALJ must explain how he arrived at this figure and cite to

supporting evidence in the record”). In any event, the ALJ’s failure to explain the omission of

these “supportable” restrictions renders this Court unable to assess the ALJ’s reasoning and

understand why she did not incorporate in the RFC Dr. Sayegh’s “supportable” limitations. See

S.S.R. 96–8p, 1996 WL 374184, at *6–7; Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411,

414 (6th Cir. 2011) (“[A]n ALJ must include a discussion of ‘findings and conclusions, and the

reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the

record.’”) (quoting 5 U.S.C. § 557(c)(3)(A)); Cooper v. Comm’r of Soc. Sec., 2018 WL 6287996,

at *5 (S.D. Ohio Dec. 3, 2018) (recommending remand where ALJ assigned significant weight to

the state-agency psychologists’ opinions but failed to include a limitation or explain how the

RFC accommodated that limitation), adopted by 2019 WL 95496 (S.D. Ohio Jan. 3, 2019); Reed

v. Comm’r of Soc. Sec., No. 1:16-CV-572, 2017 WL 1531872, at *6 (W.D. Mich. Apr. 28, 2017)

(remanding case where, inter alia, “[t]he ALJ did not explain why he did not adopt this portion

of the opinion [doctor’s opinion as to the plaintiff’s limitations] despite giving it great weight”).

“Although an ALJ is not required to discuss every piece of evidence in the record to support her

decision, an ALJ must explain why she did not include the limitations from an opinion of a

medical source in her determination of the claimant’s RFC.” Perrine v. Berryhill, No. 1:18-cv-

49, 2019 WL 1331597, at *7 (N.D. Ohio, Mar. 25, 2019). Because the Undersigned cannot

otherwise trace the ALJ’s path of reasoning in failing to include a limitation she found supported

by the record or discern what evidence the ALJ relied upon to come up with the eight percent

figure, remand is required. See Stacey v. Comm’r of Soc. Sec., 451 F. App’x 517, 519 (6th Cir.

2011) (finding that “the ALJ’s decision still must say enough ‘to allow the appellate court to

trace the path of his reasoning.’” (quoting Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995)); see

also Carter v. Berryhill, No. 2:17-cv-04399, 2018 WL 4381275, at *11 (S.D. W.Va. Apr. 11,

2018) (“In short, the ALJ failed to explain why he equated the facts to a [15%] reduction as

opposed . . . to any other number; given that the vocational expert opined that in excess of being

15% off task precluded gainful activity, the ALJ needed to explain why Claimant was not so

limited.”) (internal quotation marks omitted) (citations omitted), adopted by 2018 WL 4169108

(S.D. W.Va. Aug. 30, 2018); Beahm v. Berryhill, 2017 WL 5713225, at *3 (W.D. Wis. Nov. 28,

2017) (“Although 10 percent of an eight-hour workday amounts to about 48 minutes, it is unclear

from the record whether 48 minutes would be enough to accommodate plaintiff’s need for

unscheduled breaks” and the ALJ “did not identify or describe plaintiff’s need for unscheduled

breaks in her hypothetical and made no effort to ‘build an accurate and logical bridge’ between

her 10 percent calculation and Dr. Erickson’s opinion that plaintiff needed unscheduled breaks.”)

(citations omitted).

The Commissioner, however, argues that the “ALJ reasonably accommodated those mini-

breaks [needed by Plaintiff] by adding that Plaintiff would be off-task up to 8% of the workday

day, or approximately 38 extra minutes of ‘off task time’ (480 minutes * 0.08 = 38.4 minutes).

This is in addition to the customary breaks she would otherwise get every two hours.” (ECF No.

13 at 18.) The Commissioner’s argument is not persuasive for the reasons already discussed. In

addition, especially where the Court cannot evaluate the ALJ’s reasoning, accepting the

Commissioner’s attempt to explain this omission would result in the Court “engaging in post hoc

rationalization, which is prohibited.” Miller v. Comm’r of Soc. Sec., No. 1:13–CV–1872, 2014

WL 3950912, at *13 (N.D. Ohio Aug. 12, 2014) (remanding action where, inter alia, “the Court

is unable to ascertain the ALJ’s intent” because the ALJ “did not discuss her decision to omit the

limitation” contained in a medical opinion to which the ALJ attributed “full weight”); see also

S.S.R. 96-8p; Keeton v. Comm’r of Soc. Sec., 583 F. App’x 515, 524 (6th Cir. 2014) (“In

reviewing an ALJ’s findings and conclusions, this Court shall not ‘accept appellate counsel’s

post hoc rationalization for agency action in lieu of [accurate] reasons and findings enunciated by

the Board.’”) (quoting Hyatt Corp. v. N.L.R.B., 939 F.2d 361, 367 (6th Cir. 1991)); Garrett v.

Berryhill, No. 3:17-cv-00049, 2018 WL 1521763, at *7 (S.D. Ohio Mar. 28, 2018) (remanding

where “the Commissioner improperly relies on post hoc rationalizations to substitute for the

ALJ’s deficient consideration of Plaintiff’s Crohn’s disease before May 31, 2014”); Bookout v.

Comm’r of Soc. Sec., No. 3:13-cv-463, 2014 WL 4450346, at *7 (E.D. Tenn. Sept. 10, 2014)

(remanding case where, inter alia, “the ALJ adopted Dr. Fletcher’s opinion in its entirety” but

“ignored” certain limitations and stating that the ALJ “had a duty to explain” why she declined to

adopt the limitations).

In short, the ALJ, after finding that Dr. Sayegh’s limitations as to unscheduled breaks

supported by the record, failed to include such limitation and did not explain this omission or

explain how she arrived at an eight percent off-task figure. For the reasons discussed above, the

ALJ’s failure requires remand.

VII. CONCLUSION

In sum, from a review of the record as a whole, the Undersigned concludes that

substantial evidence does not support the ALJ’s decision denying benefits. Based on the

foregoing, it is therefore RECOMMENDED that the decision of the Commissioner be

REVERSED and that this action be REMANDED under Sentence Four of § 405(g).

VIII. PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation

omitted).

Date: February 18, 2020 s/ Elizabeth A. Preston Deavers _______

ELIZABETH A. PRESTON DEAVERS

CHIEF UNITED STATES MAGISTRATE JUDGE