Baker v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

TAURUS B.,1

Plaintiff,

Case No. 3:20-cv-0438

v. Magistrate Judge Norah McCann King

COMMISSIONER OF SOCIAL SECURITY,2

Defendant.

OPINION AND ORDER

This matter comes before the Court pursuant to Section 205(g) of the Social Security Act,

as amended, 42 U.S.C. § 405(g), regarding the application of Plaintiff Taurus B. for

Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et

seq. Plaintiff appeals from the final decision of the Commissioner of Social Security denying that

application. This matter is now before the Court, with the consent of the parties, see Joint

Consent of the Parties, ECF No. 5, on Plaintiff’s Statement of Errors, ECF No. 15, Defendant’s

Memorandum in Opposition, ECF No. 17, Plaintiff’s Reply, ECF No. 18, and the Certified

Administrative Record, ECF No. 11. After careful consideration of the entire record, the Court

decides this matter pursuant to Rule 78(b) of the Federal Rules of Civil Procedure. For the

reasons that follow, the Court reverses the Commissioner’s decision and remands the action for

further proceedings.

1 The Committee on Court Administration and Case Management of the Judicial Conference of the United States has

recommended that, due to significant privacy concerns in social security cases, federal courts should refer to

plaintiffs in such cases by only their first names and last initials. See also S.D. Ohio General Order 22-01.

2 Kilolo Kijakazi is the Acting Commissioner of Social Security. See Fed. R. Civ. P. 25(d).

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I. PROCEDURAL HISTORY

On June 29, 2015, Plaintiff filed his application for benefits, alleging that he has been

disabled since January 1, 2012. R.293–98.3 The application was denied initially and on

reconsideration, and Plaintiff requested a de novo hearing before an administrative law judge. R.

158–60. Administrative Law Judge (“ALJ”) Belinda Brown first held a hearing, at which

Plaintiff, who was represented by counsel, testified, as did a vocational expert. R. 64–90.

Following that hearing, the ALJ concluded that Plaintiff was not disabled within the meaning of

the Social Security Act at any time from the date on which the application was filed through the

date of that decision. R.118–35. However, the Appeals Council vacated that decision and

remanded the matter to the ALJ with directions to permit oral argument and to further evaluate

medical evidence. R. 136–40. The ALJ held another hearing on August 26, 2019, at which

Plaintiff, who was again represented by counsel, testified; also testifying at that hearing were a

medical expert, Lee Fischer, M.D., and a vocational expert. R. 30–63. In a decision dated

November 27, 2019, the ALJ concluded that Plaintiff had not been under a disability at any time

since the date on which the application for benefits was filed through the date of that decision. R.

9–29. That decision became the final decision of the Commissioner of Social Security when the

Appeals Council declined review on September 10, 2020. R. 1–6. Plaintiff timely filed this

appeal pursuant to 42 U.S.C. § 405(g). ECF No. 2. On March 22, 2022, the case was reassigned

to the undersigned. ECF No.19. The matter is now ripe for disposition.

3 References to pages in the Certified Administrative Record will be cited as “R. .”

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II. LEGAL STANDARD

A. Standard of Review

In reviewing applications for social security disability benefits, “[t]he Commissioner’s

conclusion will be affirmed absent a determination that the ALJ failed to apply the correct legal

standard or made fact findings unsupported by substantial evidence in the record.” Kyle v.

Comm’r of Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010); see also 42 U.S.C. § 405(g) (“The

findings of the Commissioner of Social Security as to any fact, if supported by substantial

evidence, shall be conclusive . . . .”). The United States Supreme Court has explained the

substantial evidence standard as follows:

Under the substantial-evidence standard, a court looks to an existing administrative

record and asks whether it contains sufficien[t] evidence to support the agency’s

factual determinations. And whatever the meaning of substantial in other co8ntexts,

the threshold for such evidentiary sufficiency is not high. Substantial evidence, this

Court has said, is more than a mere scintilla. It means – and means only – such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.

Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations and quotation marks

omitted); see also Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citation and internal

quotations omitted). Moreover, “‘[w]here substantial evidence supports the Secretary’s

determination, it is conclusive, even if substantial evidence also supports the opposite

conclusion.’” Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020) (quoting Crum v.

Sullivan, 921 F.2d 642, 644 (6th Cir. 1990)); see also Blakley v. Comm’r of Soc. Sec., 581 F.3d

399, 406 (6th Cir. 2009) (“Therefore, 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.’”) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.

1997)).

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“Yet, even 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 v. Comm’r Soc.

Sec. Admin., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d

742, 746 (6th Cir. 2007)).

B. Sequential Evaluation Process

The Social Security Act establishes a five-step sequential evaluation process for

determining whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. §

416.920(a)(4). “The claimant bears the burden of proof through step four; at step five, the burden

shifts to the Commissioner.” Rabbers, 582 F.3d at 652 (citing Jones v. Comm’r of Soc. Sec., 336

F.3d 469, 474 (6th Cir. 2003)).

At step one, the ALJ determines whether the plaintiff is currently engaged in substantial

gainful activity. 20 C.F.R. § 416.920(b). If so, then the inquiry ends because the plaintiff is not

disabled.

At step two, the ALJ decides whether the plaintiff has a “severe impairment” or

combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability

to do basic work activities[.]” 20 C.F.R. § 416.920(c). If the plaintiff does not have a severe

impairment or combination of impairments, then the inquiry ends because the plaintiff is not

disabled. Otherwise, the ALJ proceeds to step three.

At step three, the ALJ decides whether the plaintiff’s impairment or combination of

impairments “meets” or “medically equals” the severity of an impairment in the Listing of

Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R §

416.920(d). If so, then the plaintiff is presumed to be disabled if the impairment or combination

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of impairments has lasted or is expected to last for a continuous period of at least 12 months. Id.

at § 416.909. Otherwise, the ALJ proceeds to step four.

At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”)

and determine whether the plaintiff can perform past relevant work. 20 C.F.R. § 416.920(e), (f).

If the plaintiff can perform past relevant work, then the inquiry ends because the plaintiff is not

disabled. Otherwise, the ALJ proceeds to the final step.

At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC,

age, education, and work experience, can perform other jobs that exist in significant numbers in

the national economy. 20 C.F.R. § 416.920(g). If the ALJ determines that the plaintiff can do so,

then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be disabled if the

impairment or combination of impairments has lasted or is expected to last for a continuous

period of at least twelve months.

III. ALJ DECISION AND APPELLATE ISSUES

The Plaintiff was 40 years old on the date on which the application was filed. R. 20. At

step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since that

date. R. 15.

At step two, the ALJ found that Plaintiff’s depression and anxiety are severe

impairments. Id. The ALJ also found that Plaintiff’s diabetes mellitus, gastroparesis, spondylosis

of the lumbar spine, and asthma are not severe impairments because they cause no more than

minimal work-related difficulties and are controlled with medication. Id. However, the ALJ

stated that she “evaluated the aforementioned non-severe impairments in combination with the

claimant’s severe impairments in determining the claimant’s” RFC. Id.

At step three, the ALJ found that Plaintiff did not suffer an impairment or combination of

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impairments that met or medically equaled the severity of any Listing. Id.

At step four, the ALJ found that Plaintiff had the RFC to perform a work at all exertional

levels, but with certain non-exertional limitations:

After careful consideration of the entire record, I find that the claimant has

the residual functional capacity to perform a full range of work at all

exertional levels but with the following nonexertional limitations: The

claimant is able to perform simple, routine tasks and make simple work-

related decisions. He can never interact with the public. He is permitted to be

off-task, ten percent of the time, in addition to regular breaks, in an eight-hour

workday.

R. 17. The ALJ also found that Plaintiff had no past relevant work. R. 20.

At step five, the ALJ relied on the testimony of the vocational expert to find that a

significant number of jobs—e.g., jobs as a packager, laundry laborer, and sorter—existed in the

national economy and could be performed by an individual with Plaintiff’s vocational profile and

RFC. R. 21. The ALJ therefore concluded that Plaintiff was not disabled within the meaning of

the Social Security Act from the application date through the date of the administrative decision.

Id.

Plaintiff disagrees with the ALJ’s findings at steps two and four, arguing that the ALJ

erred in failing to find a severe physical impairment and failing to incorporate a physical

limitation in the RFC determination, and in evaluating the medical evidence. He asks that the

decision be reversed and remanded with directions for the granting of benefits or, alternatively,

for further proceedings. Plaintiff’s Statement of Errors, ECF No. 15; Plaintiff’s Reply Brief, ECF

No. 18. The Acting Commissioner takes the position that her decision should be affirmed in its

entirety because the ALJ’s decision correctly applied the governing legal standards, reflected

consideration of the entire record, and was supported by sufficient explanation and substantial

evidence. Defendant’s Brief, ECF No. 17.

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IV. RELEVANT EVIDENCE AND DISCUSSION

Because the Court concludes that the ALJ’s consideration of Plaintiff’s documented

gastroparesis is not supported by substantial evidence, the Court will address only the evidence

relating to that condition. Plaintiff was first diagnosed with gastroparesis in 2001, R. 458, and

has undergone treatment for the condition since that time, including prescribed medication and

treatment with botox. See, e.g., R. 448. Associated symptoms include vomiting and weight loss.

R. 462. In September 2015, Kurt Jacobs, D.O., performed a consultative physical examination of

Plaintiff at the request of the state agency. R. 555–59. During that examination, Plaintiff

reported, inter alia, abdominal pain, nausea, vomiting, constipation, diarrhea, and dysphagia,

with a 50-pound weight loss over an 18-month period and multiple hospitalizations for vomiting.

R. 556. Dr. Jacobs diagnosed “gastroparesis secondary to diabetes; it will probably not improve

with time.” R. 557. That same month, John M. Wo, M.D., the Director of Motility Center at

Indiana University Health, reported to Plaintiff’s treating providers at Reid Health Physician

Associates that Plaintiff’s vomiting had persisted despite medication, although his weight had

stabilized. R. 576. Treatment notes from Reid Health Physician Associates reflect continuing

complaints of “intractable nausea and vomiting” throughout 2016. See, e.g., 868, 874, 877, 892.

In August 2017, an upper GI panendoscope with esophageal biopsy and dilation performed in

connection with recurrent ulcer pain and dyspepsia documented a hiatal hernia and chronic

esophagitis. R.1393, 1396. Treatment notes from December 2017 characterized Plaintiff’s

gastroparesis with “intractable nausea and vomiting” as his “most significant issue that he is

dealing with.” R. 1469. In August 2018, Mark S. Vosler, D.O., one of Plaintiff’s treating

providers, stated that Plaintiff “suffers from pain, weakness, weight loss, vomiting” and opined

that Plaintiff “is unable to sustain employment.” R.1691. Notes from an office visit in October

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2018 include complaints of abdominal pain, nausea, and vomiting. R 1733. Treatment notes

throughout 2019 continued to refer to gastroparesia and nausea for which medication was

prescribed. R. 1725, 1728.

Plaintiff testified at the first administrative hearing that he is “subject to be vomiting or

subject to be using the bathroom.” R. 70. He can last no more than one to two hours without

experiencing nausea, vomiting, or diarrhea. R. 71. The condition also causes “fatigue and the

restlessness and aching….” R. 72.

Dr. Fischer testified as a medical expert at the second administrative hearing. According

to Dr. Fischer, the record documented a diagnosis of gastroparesis, R. 36, but the condition is not

a severe impairment and would not result in any exertional impairments. R. 38.

He does have gastroparesis with nausea, vomiting, but as I pointed out, his

weight has been stable for at least from 2015 through probably 2018 and his

albumin is normal. So there's no evidence that even if he has reported that he

has nausea and vomiting, he's certainly able to absorb nutrients and maintain

his weight.

R. 39.

Plaintiff testified at the second administrative hearing—after the medical expert had left

the hearing—that only showering relieves the nausea and cramping, R. 46; his medication makes

him sleepy. R. 48.

In evaluating the medical evidence, the ALJ found that Plaintiff had no exertional

limitations. R. 20. In making this finding, the ALJ credited Dr. Fischer’s opinion that Plaintiff

had no physical severe impairments, and the ALJ explained that medical experts such as Dr.

Fischer have “applicable medical specialties and specialized knowledge of the Social Security

disability program.” Id. The ALJ gave little credit to the opinion of consultative examiner Dr.

Jacobs, who had opined that Plaintiff’s gastroparesis “will probably not improve with time,” R.

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557, concluding that the doctor’s findings on clinical examination did not support his opinion. R.

20. The ALJ also gave little credit to the opinion of Dr. Vosler, who was one of Plaintiff’s

treating physicians and who stated that Plaintiff could not sustain employment because of his

medical condition, because it was inconsistent with the testimony of Dr. Fischer, who had

“examined the claimant’s records, as a whole.” R. 20.

As noted above, the ALJ found that Plaintiff’s gastroparesis “has not caused more than

minimal work-related difficulties, and has been controlled with medication.” R. 15. However,

the evidence cited by the ALJ in support of this finding, id. (“Ex.38F/1”), is a treatment note

from October 2018, which actually refers to “gastroparesis which has been an issue for many

years now”, R. 1732, and which observes that medication “seems to help …but [he] still is

unable to tolerate a substantial diet most days….” Id. The treating doctor’s review of systems

during that visit was positive for abdominal pain, nausea and vomiting. R. 1733.

At step two, an ALJ decides whether the plaintiff has a “severe impairment” or

combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability

to do basic work activities[.]” 20 C.F.R. § 416.920(c); SSR 85-28, 1985 WL 56856, at *3 (Jan. 1,

1985). The United States Court of Appeals for the Sixth Circuit has held that an impairment is

not severe only if it is “a slight abnormality that minimally affects work ability regardless of age,

education, and experience.” Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988). The record in

this case is replete with evidence that Plaintiff’s gastroparesis causes at least nausea and

vomiting. Even the testifying medical expert acknowledged that fact and appears to have based

his opinion of non-severity on only the fact that Plaintiff’s weight had stabilized in recent years.

R. 39. This Court therefore concludes that the ALJ erred in failing to include Plaintiff’s

gastroparesis in his severe impairments at step 2 of the sequential evaluation.

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However, where the ALJ has found at least one severe impairment, the sequential

analysis will continue and the failure to include other severe impairments is not itself reversible

error. Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987). In the

case presently before the Court, the ALJ found that Plaintiff suffers severe mental impairments,

although those impairments do not result in any exertional limitations. R. 15. The ALJ’s failure

to include Plaintiff’s established gastroparesis as a severe impairment at step 2 is therefore

“legally irrelevant,” see McGlothin v. Comm’r of Soc. Sec., 299 F. App’x 516, 522 (6th Cir.

2008), so long as the ALJ continued the sequential analysis and considered both severe and non-

severe impairments in determining Plaintiff’s RFC. See id. The ALJ purported to have done so.

R. 15 (“The undersigned evaluated the aforementioned non-severe impairments in combination

with the claimant’s severe impairments in determining the claimant’s residual functional

capacity consistent with 20 CFR 416.945 and 404.1545.”).

However, the ALJ’s RFC determination fails to consider some of Plaintiff’s alleged

symptoms and is, in some respects, based on inconsistent or illogical reasoning. For example, the

ALJ stated that she “accounted for sleepiness in the above residual functional capacity by

allowing ten percent off-task in addition to normal breaks,” R. 19, a finding that does not take

into account Plaintiff’s complaints of near-constant nausea and vomiting, which all medical

providers—including the testifying medical expert—recognized and acknowledged. The ALJ

also discounted Plaintiff’s complaints of pain and gastric distress to the extent that they are

inconsistent with the objective medical and other evidence. R. 18. In this regard, the ALJ noted

that Plaintiff’s mother had reported that Plaintiff “waters the plants, takes out the trash, cleans

the dishes, makes the bed, picks up clothes, and wipes the mirrors” and can perform light chores

“depending on how he feels.” Id. In the opinion of this Court, however, “these somewhat

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minimal daily functions are not comparable to typical work activities.” See Rogers v. Comm'r of

Soc. Sec., 486 F.3d 234, 248 (6th Cir. 2007). The ALJ also discounted—somewhat illogically—

Plaintiff’s subjective complaints of pain and other symptoms because those complaints were

inconsistent with evidence regarding Plaintiff’s mental functioning. R. 18–19. Finally, and in a

finding that was both illogical and inconsistent with the actual RFC for a full range of work at all

exertional levels, the ALJ stated that her RFC determination accommodated Plaintiff’s allegation

that eating or drinking anything aggravates his symptoms “by limited him range [sic] of medium

exertional level work with mental limitations and limiting his interaction with the public.” R. 19.

In short, the ALJ’s failure to include Plaintiff’s documented gastroparesis among his

severe impairments at step 2 of the sequential evaluation was not harmless and warrants remand

of the matter for further consideration of this issue.

V. CONCLUSION

For these reasons, the Court REVERSES the Commissioner’s decision and REMANDS

the matter for further proceedings consistent with this Opinion and Order.

The Clerk is DIRECTED to enter FINAL JUDGMENT pursuant to Sentence 4 of 42

U.S.C. § 405(g).

Date: April 5, 2022 s/Norah McCann King

NORAH McCANN KING

UNITED STATES MAGISTRATE JUDGE

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