Burwick v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

MELISA J. BURWICK, : Case No. 3:19-cv-159

:

Plaintiff, :

: Magistrate Judge Sharon L. Ovington

vs. :

(by full consent of the parties)

:

COMMISSIONER OF THE SOCIAL :

SECURITY ADMINISTRATION, :

:

Defendant. :

DECISION AND ENTRY

I. Introduction

In November 2015, Plaintiff Melisa J. Burwick filed an application for Disability

Insurance Benefits and for a period of disability benefits. The claim was denied initially

and upon reconsideration. After a hearing at Plaintiff’s request, Administrative Law Judge

(ALJ) Deborah F. Sanders concluded that Plaintiff was not eligible for benefits because

she was not under a “disability” as defined in the Social Security Act. The Appeals Council

denied Plaintiff’s request for review.

Plaintiff subsequently filed this action. She seeks a remand for benefits, or in the

alternative, for further proceedings. The Commissioner asks the Court to affirm the non-

disability decision.

The case is before the Court upon Plaintiff’s Statement of Errors (Doc. No. 9), the

Commissioner’s Memorandum in Opposition (Doc. No. 12), Plaintiff’s Reply (Doc. No.

13), and the administrative record (Doc. No. 8).

II. Background

Plaintiff asserts that she has been under a disability since May 1, 2014. At that time,

she was forty-three years old. Accordingly, she was considered a “younger person” under

Social Security Regulations. See 20 C.F.R. § 404.1563(c). She has at least a high school

education.

The evidence of the record is sufficiently summarized in the ALJ’s decision (Doc.

No. 8-2, Page ID 63-78), Plaintiff’s Statement of Errors (Doc. No. 9), the Commissioner’s

Memorandum in Opposition (Doc. No. 12), and Plaintiff’s Reply (Doc. No. 13). Rather

than repeat these summaries, the Court will focus on the pertinent evidence in the

discussion below.

III. Standard of Review

The Social Security Administration provides Disability Insurance Benefits to

individuals who are under a “disability,” among other eligibility requirements. Bowen v.

City of New York, 476 U.S. 467, 470, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986); see 42

U.S.C. § 423(a)(1). The term “disability”—as defined by the Social Security act—has

specialized meaning of limited scope. It encompasses “any medically determinable

physical or mental impairment” that precludes an applicant from performing a significant

paid job—i.e., “substantial gainful activity,” in Social Security lexicon. 42 U.S.C. §423

(d)(1)(A); see Bowen, 476 U.S. at 469-70.

Judicial review of an ALJ’s non-disability decision proceeds along two lines:

“whether the ALJ applied the correct legal standards and whether the findings of the ALJ

are supported by substantial evidence.” Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 406

(6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007).

Review for substantial evidence is not driven by whether the Court agrees or disagrees with

the ALJ’s factual findings or by whether the administrative record contains evidence

contrary to those factual findings. Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th

Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Instead, the

ALJ’s factual findings are upheld if the substantial-evidence standard is met—that is, “if a

‘reasonable mind might accept the relevant evidence as adequate to support a conclusion.’”

Blakely, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th

Cir. 2004)). Substantial evidence consists of “more than a scintilla of evidence but less

than a preponderance…” Rogers, 486 F.3d at 241 (citations and internal quotation marks

omitted); see Gentry, 741 F.3d at 722.

The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal

criteria—may result in reversal even when the record contains substantial evidence

supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651

(6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial evidence,

‘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 in part Bowen, 478 F.3d at 746,

and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004)).

IV. The ALJ’s Decision

As noted previously, the Administrative Law Judge was tasked with evaluating the

evidence related to Plaintiff’s application for benefits. In doing so, the Administrative Law

Judge considered each of the five sequential steps set forth in the Social Security

Regulations. See 20 C.F.R. § 416.920. She reached the following main conclusions:

Step 1: Plaintiff did not engage in substantial gainful employment after May 1,

2014.

Step 2: She has the severe impairments of seizures, migraines, depressive

disorder, anxiety disorder, and borderline intellectual functioning.

Step 3: She does not have an impairment or combination of impairments that

meets or equals the severity of one in the Commissioner’s Listing of

Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4: Her residual functional capacity (RFC), or the most she could do

despite her impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d

235, 239 (6th Cir. 2002), consists of “full range of work at all exertional

levels but with the following nonexertional limitations: (1) never

climbing ladders, ropes, or scaffolds; (2) no exposure to unprotected

heights or dangerous machinery; (3) never operating a commercial

motor vehicle; (4) avoiding concentrated exposure to extreme heat or

humidity; (5) no work at a noise level greater than ‘3’ as defined by the

DOT; (6) avoiding bright lights such as strobe or bright flashing lights;

(7) avoiding concentrated exposure to excessive vibration; (8) simple,

routine, repetitive, 1-3 step tasks; (9) no work involving fast-paced

production rate pace or strict quotas; (10) occasionally interacting with

coworkers and supervisors; (11) occasionally interacting with the

public but not in a customer service capacity; (12) can adapt to

infrequent changes requiring advance notice of any major changes with

gradual implementation of major changes; (13) off-task 5% daily; (14)

may be absent more than 8 but less than 10 days per year.”

Step 4: Plaintiff has no past relevant work.

Step 5: Plaintiff could perform a significant number of jobs that exist in the

national economy.

(Doc. No. 8-2, PageID 65-78). Based on these findings, the Administrative Law Judge

ultimately concluded that Plaintiff was not under a benefits-qualifying disability. Id. at 78.

V. Discussion

Plaintiff raises two primary issues in the present action. First, she contends that the

Administrative Law Judge reversibly erred at Step Three by failing to meaningfully

evaluate whether Plaintiff’s impairments met or equaled the relevant Listings. (Doc. No.

9, PageID 656). Second, Plaintiff argues that the Commissioner failed to carry its Step

Five burden because the ALJ erred in assessing the medical opinion evidence and

Plaintiff’s residual functional capacity. Id. at 658.

A. Listings

Plaintiff first asserts that her severe impairments could have reasonably met Listing

§ 11.02(A) and § 11.02(B). (Doc. No. 9, PageID 656). She contends that the ALJ’s

discussion as to Listing § 11.02(D) did not satisfy the ALJ’s obligation in determining

whether she met or equaled Listing 11.02. Id.

At Step Three, the ALJ must determine whether the claimant has an impairment that

meets or medically equals one of the listed impairments in Appendix 1, Subpart P (the

“Listings”). 20 C.F.R. 404.1520(a)(4)(iii). The Listings describe impairments that are

considered by the Social Security Administration to be “severe enough to prevent an

individual from doing any gainful activity, regardless of his or her age, education, or work

experience.” 20 C.F.R. § 404.1525(a). Indeed, “neither the listings nor the Sixth Circuit

require the ALJ to ‘address every listing’ or ‘to discuss listings that the applicant clearly

does not meet.’” Smith-Johnson v. Comm’r of Soc. Sec., 579 F. App’x 426, 432 (6th Cir.

2014) (citing Sheeks v. Comm’r of Soc. Sec., 544 F. App’x 639, 641 (6th Cir. 2013)).

However, the ALJ should discuss the relevant listing “where the record raises a ‘substantial

question as to whether [the claimant] could qualify as disabled under a listing.” Id. (citing

Abbott v. Sullivan, 905 F.2d 918, 925 (6th Cir. 1990)). The claimant has the burden at this

step to establish that she meets or equals a listed impairment. Roby v. Comm’r of Soc. Sec.,

48 F. App’x 532, 536 (6th Cir. 2002).

In the instant case, the Administrative Law Judge evaluated whether Plaintiff’s

severe impairments met or equaled Listing § 11.02(D). Her supporting analysis was

limited to the following:

Migraine headaches are evaluated under section 11.02(D), which addresses

dyscognitive seizures. This requires headaches occurring at least once every

two weeks for at least three consecutive months despite adherence to

prescribed treatment and marked limitation in physical functioning or one of

the mental functioning categories.

Evidence of the frequency of the [Plaintiff’s] headaches does not meet this

listing. The record does not show the requisite seizure pattern despite

adherence. The evidence actually indicates questions about [Plaintiff’s]

medication adherence given the lab work results of subtherapeutic levels and

attributed to be the most obvious cause of [Plaintiff’s] recurrent seizures.

Addressing the physical functioning prong of 11.02(D), there is no evidence

in the medical record the [Plaintiff] has disorganization in motor function in

two extremities resulting in an extreme limitation. She is typically noted to

be ambulating effectively with no neurological abnormalities noted on

physical examinations.

(Doc. No. 8-2, PageID 72-73) (citations omitted). The other sections of Listing § 11.02

were not individually evaluated. Yet, the ALJ stated, “[t]he severity of [Plaintiff’s]

physical impairments, considered individually and in combination, did not meet or

medically equal the criteria of a listing in section 11.02 (epilepsy), or any other section in

20 CFR Part 404, Subpart P, Appendix 1 through the date last insured.” (Doc. No. 8-2,

Page ID 72). At Step Three, the ALJ also evaluated Plaintiff’s severe impairments under

Listings § 12.04, § 12.06 and § 12.11. Id. at 73.

Plaintiff argues her severe impairments should have been evaluated under two other

relevant sections: § 11.02(A) and § 11.02(B). In support of her assertion, Plaintiff cites to

specific evidence that her severe impairments met or medically equaled these sections.

Turning first to § 11.02(A), Plaintiff was required to show “generalized tonic-clonic

seizures occurring at least once a month for at least 3 consecutive months despite adherence

to prescribed treatment.” “Generalized tonic-clonic seizures” are also known as “grand

mal seizures.” Centers for Disease Control and Prevention (CDC), Epilepsy: Types of

Seizures (Sept. 30, 2020, https://www.cdc.gov/epilepsy/about/types-of-seizures.htm.

Plaintiff argues the evidence in the record demonstrates that she suffers from this

type of seizure, and points to treatment records from February 2015. (Doc. No. 9, PageID

649, 656). On February 26, 2015, Plaintiff, accompanied by her son, presented to the

Emergency Department after having several seizures. (Doc. 8-7, PageID 394). Treatment

notes indicate that her son witnessed all of the seizures and “describe[d] the seizures as

tonic clonic.” Id. Plaintiff’s son also reported that it appeared “as if [Plaintiff] lost

consciousness during the seizures.” Id. Plaintiff complained of a migraine headache and

photo and phonophobia. Id. Treatment notes state that the “only obvious cause of

[Plaintiff’s] recurrent seizures [that] morning [was] because of a Dilantin level that [was]

not within the therapeutic range.” Id. at 397.

In accordance with § 11.02(A), Plaintiff must have also adhered to prescribed

treatment. Plaintiff acknowledges the low Dilantin levels from the aforementioned hospital

visit but points to evidence that suggests she was not at fault for the low medication levels

that led to her seizures. And, based on a review of the record, the medical evidence does

raise a reasonable question as to whether Plaintiff truly failed to adhere to treatment. For

instance, when Plaintiff saw Dr. Glickfield about a week after she presented to the

Emergency Department, she reported that she had not missed any doses despite the low

levels. (Doc. 8-7, PageID 338). Treatment notes indicate that even though a neurologist

increased her medication level, Plaintiff’s level was still low two days after the increase

even though she was having side effects. Id. Plaintiff’s provider noted that they were

“[n]ot sure why medications that might decrease seizure threshold are actually the issue as

to why level was too low,” and there was concern Plaintiff “may have gotten a reduced

effective dose.” Id. Based on this evidence, there is a reasonable question as to whether

the low-medication levels are solely attributable to Plaintiff’s adherence. Moreover, the

ALJ does not definitively conclude in her analysis of § 11.02(D) that Plaintiff did not

adhere but merely indicates that the evidence raises questions about medication adherence.

Plaintiff also argues that she met the requisite frequency for consecutive months as

required under § 11.02(A). (Doc. No. 9, PageID 656). In April 2015, Plaintiff reported

that she had been experiencing different types of seizures at different frequencies including

Type 1 seizures almost two to three times per day, Type 2 seizures at nighttime almost one

time every two to three nights, and Type 3 (“major”) seizures approximately two to three

times per month.1 (Doc. No. 8-7, PageID 352). In July 2015, Plaintiff reported that she

1 Treatment notes describe Type 1 seizures as “30 sec staring spells, with eyes going ‘glassy,’ slurring of speech and

loss of awareness, followed by return to baseline, with no recollection of the spell.” Likewise, they describe Type 2

seizures as “10 sec nocturnal spells of right UE and LE twitches, that happen in the middle of the night, noted by her

husband. She never wakes up from sleep but has had instances of bedwetting with this. When woken up, she has a

had “6 spells” in the last three months since her visit in April. Id. Her sister reported “great

improvement in terms of frequency of the seizures,” but Plaintiff still experienced Type 1

seizures four times and Type 3 seizures two times. Id. Plaintiff also cites to evidence of

seizures occurring in 2016 and reports she “had experienced between 100 to 150 seizures

in the past year.” (Doc. No. 9, PageID 657) (Doc. No. 8-7, PageID 452). Therefore, there

is evidence that supports Plaintiff’s contention that she suffered from tonic-clonic seizures

at least once a month for three consecutive months.

Notably, the ALJ does not mention the term tonic-clonic anywhere in her decision,

and only once mentions grand mal seizures (in her Step Four analysis) presumably in

reference to Plaintiff’s testimony at the hearing. (Doc. No. 8-2, PageID 76). At the hearing,

they had the following exchange:

Q: …how often do you have these big seizures, the grand mal seizures?

A: I’m having them once or twice. Maybe once a month I’m having a grand

mal seizure.

Id. at 98. It is concerning that the ALJ failed to mention the relevant information in her

Step Three analysis given that Plaintiff’s testimony suggests that her severe impairments

may satisfy the requisite seizure type (i.e. tonic clonic/grand mal) and seizure frequency

(once per month for three consecutive months) required under § 11.02(A). Ultimately, the

post-spell confusion and disorientation phase that lasts many minutes.” And finally, Type 3 seizures are detailed to

be “1 min long “full blown” motor convulsions of the whole body, which usually is preceded by grunting, flinching

of right hemiface/hemibody, staring and slurring of speech (as if she is drunk). Postictally she takes 20-30 mins to

come around but is very sore and tired. These spells are most often preceded by a day of ‘bad headache,’ or being

tired from travel or being moody and depressed.” (Doc. No. 8-7, PageID 352).

record raises a substantial question as to whether Plaintiff could qualify as disabled under

§ 11.02(A). Thus, Plaintiff’s contention as to § 11.02(A) is well taken.

On the contrary, the ALJ did not err as to § 11.02(B). Under § 11.02(B), Plaintiff

was required to show “dyscognitive seizures occurring at least once a week for at least 3

consecutive months despite adherence to prescribed treatment.” 20 C.F.R. Part 404,

Subpart P, Appendix 1, Listing § 11.02. This section addresses a different type of seizure

than the type required by § 11.02(A) as discussed above. The requirements of § 11.02(B)

are similar to those set forth in § 11.02(D) although there are two primary differences.

First, § 11.02(D) has a less stringent frequency requirement necessitating “dyscognitive

seizures occurring at least once every 2 weeks for at least 3 consecutive months,” rather

than once a week as required by § 11.02(B). Id. Listing § 11.02(D) also requires marked

limitation in certain areas (i.e. physical or mental functioning). Id.

Based on these differences, it is reasonable that the ALJ declined to evaluate

Plaintiff’s severe impairments under both § 11.02(B) and § 11.02(D). Both sections pertain

specifically to dyscognitive seizures. And, while there are some differences, it is easy to

discern why the ALJ did not evaluate Plaintiff under § 11.02(B). Listing § 11.02(D)

possesses a less stringent frequency requirement than § 11.02(B), and the ALJ determined

that Plaintiff’s dyscognitive seizures and migraines did not meet the frequency required

under § 11.02(D). (Doc. No. 8-2, PageID 73). If Plaintiff did not meet the lesser frequency

required in § 11.02(D), then she certainly would not meet the higher frequency required

under § 11.02(B). Therefore, the ALJ did not err as to § 11.02(B).

Additionally, while Plaintiff does not allege that the ALJ erred in finding that

Plaintiff’s severe impairments did not meet or equal Listing § 11.02(D), it appears that the

ALJ did not properly analyze Plaintiff’s severe impairments under that section. The ALJ

correctly notes that § 11.02(D) requires “marked limitation in physical functioning or one

of the mental functioning categories” in addition to the other requirements. However, in

the analysis the ALJ does not appear to apply these requirements. (Doc. No. 8-2, PageID

72). The ALJ instead states that in “[a]ddressing the physical functioning prong of

11.02(D), there is no evidence in the medical record [that Plaintiff] has disorganization in

motor function in two extremities resulting in an extreme limitation.” Id. at 73. Listing §

11.02 as a whole, does not require that the claimant meet such criteria, and Listing § 11.02

is enumerated as an exception to this specific criterion. See 20 C.F.R. Part 404, Subpart P,

Appendix 1 (“All listings in this body system, except for 11.02 (Epilepsy)…include criteria

for disorganization of motor function that results in an extreme limitation in [claimant’s]

ability to (a) [s]tand up from a seated position; or (b) [b]alance while standing or walking;

or (c) [u]se the upper extremities”). Therefore, although the ALJ cites to the correct

requirement, she did not apply that requirement and instead applied criteria that is not in

any section of Listing § 11.02. Nevertheless, this particular error is harmless because

Plaintiff lacked marked limitation in physical functioning or one of the mental functioning

categories. (Doc. No. 8-2, PageID 73).

In sum, the Administrative Law Judge failed to appropriately evaluate Plaintiff’s

severe impairments at Step Three. As reasoned above, the ALJ should have evaluated

Plaintiff’s severe impairments under § 11.02(A) or, at the very least, provided some

reasoning for declining to do so. Such an error is not harmless and is grounds for reversal

because had the ALJ evaluated Plaintiff’s severe impairments under this section and found

Plaintiff’s severe impairments met or medically equaled the Listing, then Plaintiff was

entitled to a finding that she was disabled under the Social Security Regulations. See

Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 416 (6th Cir. 2011).

B. Residual Functional Capacity and Opinion Evidence

Plaintiff also criticizes the ALJ’s evaluation of her residual functional capacity and

contends that it does not adequately account for the medical-opinion evidence. (Doc. No.

9, PageID 659-662). The ALJ limited Plaintiff to “occasionally interacting with coworkers

and supervisors” and “occasionally interacting with the public but not in a customer service

capacity.” (Doc. No. 8-2, PageID 74). This allegedly did not appropriately account for

her limitations as the medical opinions limited her to “superficial” interactions rather than

“occasional” and such terms are not coterminous. (Doc. No. 9, PageID 661).

Dr. Todd Finnerty described this limitation in his medical opinion. Dr. Finnerty

opined that Plaintiff should be “limited to only brief, superficial interaction with the general

public, co-workers, and supervisors.” (Doc. No. 8-2, PageID 70). Dr. Finnerty’s opinion

was afforded “great weight.” Id. Dr. Schwartzman’s opinion, which was afforded “partial

weight,” also articulated this limitation using identical terminology. Id.

While “there is no requirement that an ALJ adopt a state agency psychologist’s

opinions verbatim,” Reeves v. Comm’r of Soc. Sec., 618 F. App’x 267, 275 (6th Cir. 2015),

if an ALJ “assigns significant weight to a particular opinion and states it is consistent with

the record, he must incorporate the opined limitations or provide an explanation for

declining to do so.” Lindsey v. Comm’r of Soc. Sec., No. 2:18-CV-18, 2018 WL 6257432,

at *5 (S.D. Ohio Nov. 30, 2018) (Vascura, M.J.), Report & Recommendation, adopted,

No. 2:18-CV-018, 2019 WL 133177 (S.D. Ohio Jan. 7, 2019) (Sargus, D.J.).

In the instant case, the ALJ’s failure to meaningfully explain the discrepancy

between Plaintiff’s RFC determination and Dr. Finnerty’s opinion constitutes error. See

generally Wood v. Comm’r of Soc. Sec., No. 3:18-CV-76, 2019 WL 1614591, at *3 (S.D.

Ohio April 16, 2019) (Newman, M.J.), report and recommendation adopted, No. 3:18-CV-

76, 2019 WL 1958663 (S.D. Ohio May 1, 2019) (Rice, D.J.). In assessing Plaintiff’s RFC,

the ALJ does not sufficiently explain why she elected to replace the term “superficial” with

“occasional,” nor does she account for the limitation related to Plaintiff’s need for

“superficial” interactions with others elsewhere in the RFC.

In opposition, the Commissioner alleges the ALJ did sufficiently explain her

reasoning for limiting Plaintiff to “occasional” rather than “superficial” interactions, and

points to the ALJ’s discussion in Step Three. (Doc. No. 12, PageID 682). At that step, the

ALJ acknowledged Dr. Finnerty and Dr. Schwartzman’s finding that Plaintiff had a

moderate limitation in her ability to interact with others. (Doc. No. 8-2, PageID 71). But

in reliance on other medical-opinion evidence and treatment records, the ALJ found that

Plaintiff only exhibited a mild limitation in this area. Id.

Drawing support from Dr. Chiappone’s medical opinion, the ALJ cites the

evaluating physician’s finding that “there was no evidence of any significant difficulty with

the claimant’s capacity for interactions with other persons...” Id. Even though it may

appear, as the Commissioner alleges, that the ALJ properly justified her decision, other

aspects of the ALJ’s decision undermines this justification. For example, prior to citing to

Dr. Chiappone’s opinion in this regard, the ALJ determined that the opinion was only

entitled to “little weight.” Id. at 69. Yet, the ALJ relies on this opinion of “little weight”

in attempting to discredit, or at the very least downplay, the opinion of Dr. Finnerty which

was afforded “great weight.” And, although Dr. Schwartzman’s opinion was only afforded

“partial weight,” it was identical to Dr. Finnerty’s opinion as to this limitation.

Additionally, while the ALJ also cites to treatment records in support of her

determination that Plaintiff only had a mild limitation in her ability to interact with others,

the ALJ does not reason how “occasional” interactions better align with a mild limitation

than “superficial” interactions given that the terms offer a different meaning, and such

terms are not interchangeable. Lindsey, 2018 WL 6257432, at *4 (citing Hurley v.

Berryhill, No. 1:17-CV-421-TLS, 2018 WL 4214523, at *4 (N.D. Ind. Sept. 5, 2018)

(“‘Occasional contact’ goes to the quantity of time spent with [ ] individuals, whereas

‘superficial contact’ goes to the quality of the interactions”). Therefore, given the

disconnect in the ALJ’s reasoning, she committed reversible error in failing to properly

account for this limitation or at least sufficiently explaining why she declined to do so.

Likewise, the ALJ erred as to the hypothetical posed to the vocational expert (VE).

During the hearing, the hypothetical pertained only to “occasional” interactions with the

public, co-workers and supervisors rather than “superficial” interactions. (Doc. No. 8-2,

PageID 120). And in turn, the ALJ relied on the vocational expert’s responses to the

hypothetical that limited the individual to only “occasional” contact. Id. at 78. The

question posed to the vocational expert did not accurately portray Plaintiff’s impairments

and cannot serve as substantial evidence that Plaintiff has the ability to perform specific

jobs. See Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (citing Varley v.

Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir. 1987) (At Step Five, the

Commissioner was required to “make a finding ‘supported by substantial evidence that

[Plaintiff] has the vocational qualifications to perform specific jobs’”); see also Varley,

820 F.2d at 779 (A vocational expert’s testimony may serve as substantial evidence so long

as the hypothetical question accurately portrays the claimant’s physical and mental

impairments). Therefore, the ALJ failed to meet her burden at Step Five. See Wood, 2019

WL 1614591, at *3 (“[T]he ALJ failed to meet his burden at Step Five because the Court

cannot discern whether the additional limitation—to ‘superficial contact’—would preclude

substantial gainful employment in the national economy”) (citations omitted).

Plaintiff also challenges other aspects of the hearing testimony, but such challenges

are without merit. She cites to her “severe, persistent symptoms” that would have caused

her to miss more than the allowable one day per month as reflected in the hypothetical.

(Doc. No. 9, PageID 658-59). During an exchange with Plaintiff’s counsel, the VE testified

that the jobs previously discussed would be ruled out if the individual were required to take

two to three unscheduled 30-40-minute breaks on top of regular breaks per week either to

lie down or for petit mal seizures. (Doc. No. 8-2, PageID 122).

Plaintiff suggests that the hypothetical posed by her counsel and the vocational

expert’s related testimony should serve as proof that she would be unable to sustain

competitive employment at any exertional level. However, no error occurred when the

ALJ declined to rely on the testimony related to counsel’s hypothetical as the hypothetical

is not substantiated by the evidence in the record. See Stanley v. Sec’y of Health & Human

Servs., 39 F.3d 115 118 (6th Cir. 1994) (“[T]he ALJ is not obliged to incorporate

unsubstantiated complaints into his hypothetical.”) Plaintiff points to the medical opinion

of state agency consultant, Dr. Judith Schwartzman, who indicated that when Plaintiff’s

symptoms increase, “she [would] occasionally need flexibility in work schedule, taking

breaks, and pacing.” (Doc. No. 8-3, PageID 137). However, the ALJ only afforded Dr.

Schwartzman’s opinion “partial weight” and declined to afford more weight because the

ALJ found “no basis for the restriction allowing for the claimant to have ‘occasional

flexibility in work schedule, taking breaks, and pacing when symptoms increase.’” (Doc.

No. 8-2, PageID 70). Even if the ALJ had found that the opinion was supported by the

evidence in the record, the opinion does not suggest how many breaks Plaintiff would need

or how long those breaks would last. Therefore, it is evident that the specifics included in

counsel’s hypothetical were not derived from, and cannot be substantiated by, Dr.

Schwartzman’s opinion alone. And, as the Commissioner notes, “no medical source

quantified any such level of breaks.” (Doc. No. 12, PageID 683).

VI. Remand

A remand is appropriate when the ALJ’s decision is unsupported by substantial

evidence or when the ALJ failed to follow the Administration’s own regulations and that

shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial

right. Bowen, 478 F.3d at 746. Remand may be warranted when the ALJ failed to provide

“good reasons” for rejecting a treating medical source’s opinions, see Wilson, 378 F.3d at

545-47; failed to consider certain evidence, such as a treating source’s opinions, see Bowen,

478 F.3d at 747-50; failed to consider the combined effect of the plaintiff’s impairments,

see Gentry, 741 F.3d at 725-26; or failed to provide specific reasons supported by

substantial evidence for finding the plaintiff lacks credibility, see Rogers, 486 F.3d at 249.

Under sentence four of 42 U.S.C. § 405(g), the Court has authority to affirm,

modify, or reverse the Commissioner’s decision “with or without remanding the cause for

rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99, 111 S. Ct. 2157, 115 L. Ed. 2d 78

(1991). Consequently, a remand under sentence four may result in the need for further

proceedings or an immediate award of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v.

Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994). The latter is warranted where the evidence of

disability is overwhelming or where the evidence of disability is strong while contrary

evidence is lacking. Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th

Cir. 1994).

A judicial award of benefits is unwarranted in the present case because the evidence

of disability is not overwhelming, and the evidence of disability is not strong while contrary

evidence is lacking. However, Plaintiff is entitled to an Order remanding this case to the

Social Security Administration pursuant to sentence four of § 405(g) due to the problems

discussed above. On remand, the ALJ should be directed to evaluate the evidence of record

under the applicable legal criteria mandated by the Commissioner’s Regulations and

Rulings and by case law; and to evaluate Plaintiff’s disability claim under the required five-

step sequential analysis to determine anew whether Plaintiff was under a disability and

whether her application for Disability Insurance Benefits should be granted.

IT IS THEREFORE ORDERED THAT:

1. The ALJ’s non-disability decision is vacated;

2. No finding is made as to whether Plaintiff Melisa J. Burwick was under a

“disability” within the meaning of the Social Security Act;

3. This matter is REMANDED to the Social Security Administration under

sentence four of 42 U.S.C. § 405(g) for further consideration consistent

with this decision; and

2. The case is terminated on the Court’s docket.

March 4, 2021 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge