# Burwick v. Commissioner of Social Security

> District Court, S.D. Ohio · March 4, 2021

URL: https://www.frixlaw.com/law-library/cases/10377390

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** March 4, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10377390. Public record. Not legal advice.